The criticisms levelled by the learned District Judge, that the learned District Munsif did not consider the points indicated by the learned District Judge and should have examined Sri Radhakrishnan as a Court witness, will not justify an order of remanded under Older 41, rule 23, Civil Procedure Code. It is settled law, at any rate, so far as the Court is concerned, under Order 41, rule 23, that, before the suit could be remanded to the trial Court, it is necessary for the appellate Court to find that the decree of the trial Court should be set aside. (Vide Balasubramania Iyer v. Subbiah Thevar1), wherein the earlier decisions are referred to and also Ahmed Rowther v. Bathumal Beevi2. Examining the case from that point of view, all that can be said about the judgment of the learned District Munsif is that he has not considered some of the aspects indicated by the learned District Judge and, as for the examination of Sri Radhakrishnan as a Court witness, it is, in the last resort, a matter of discretion for the particular Judge. The learned District Munsif thought that he was justified in acting on the materials placed before him and came to the conclusion that the discha