This appeal is against the order of the Subordinate Judge of Vellore remanding the case to the trial Court. The suit which has given rise to this appeal was instituted by the appellant herein for ejecting the respondents from the suit properties which were purchased by him at a Court auction sale on 7th December, 1944. A few material facts may usefully be stated here:One Varadarajan filed O.S.No.71 of 1927 in the Sub-Court, Vellore, for partition of the family properties and for separate possession of his share against two persons Veerasami and Kaniappan. A preliminary decree was passed by the trial Court and in appeal against that decree a stay of final decree proceedings was obtained on condition that the judgment-debtors should furnish security for a sum of Rs.12,000. In pursuance of that order the judgment-debtors, that is, Kaniappan and Veerasami furnished the suit properties as security in addition to a third party security. Ultimately the appeal was dismissed and stay dissolved. On taking accounts it was found that the judgment-debtors were liable to pay the decree-holder a sum of Rs.25,000 and a decree followed for this amount, besides the decree for partition. In execution of this decree the suit properties along with other properties were brought to sale and in the Court-auction the appellant purchased properties as covered by lot No.2 for a sum of Rs.4,500 on 7th December, 1944, and took delivery of those properties.

The present suit which has given rise to this appeal was instituted by the Court-auction-purchaser, i.e., the appellant herein on the allegation that subsequent to his taking possession of the suit properties the respondents herein trespassed on them. The main defence to the suit was that title to these properties vested in the defendants by virtue of a sale deed dated 6th July, 1932, from Kaniappa whose separate properties they were and that in any event the defendants perfected their title thereto by adverse possession. Rejecting the defence the trial Court decreed the suit.

On appeal against this decree and judgment of the trial Court the learned Subordinate Judge remanded the case to the trial Court for the purpose of taking full evidence in the case.

In the words of the learned Subordinate Judge the reasons for the remand are:

“There is no clear proof before me of the manner in which the suit properties came to be sold or the manner in which full satisfaction of the decree came to be entered. It has been mentioned to me at the Bar that the surety’s son paid Rs.12,000 and got his properties released. If that is true, the entire amount secured under Ex. P-4, having been paid, the B schedule properties should not have been sold and even if the sale had been held before the payment the sale should not have been confirmed. As there is lacuna in the evidence with reference to this portion of the case, in my opinion, it is better to send back the case to the trial Court for the purpose of taking full evidence on this matter.”

The plaintiff who is aggrieved by this order has come up in appeal to this Court. Mr. Ramachandra Aiyar for the appellant contends in support of the appeal that the order of remand passed by the lower Appellate Court is illegal as it is contrary to the provisions of Order 41, rule 23, Civil Procedure Code. He argues that the lower Court acted without jurisdiction in remanding the case without coming to the conclusion that the decision of the trial Court is wrong and that it ought to be set aside. In support of his contention he relies upon two decisions of this Court reported in Agneswaraswami Devasthanam v. Thillai Govinda Pandithan1, and Ariyangavu Pillai v. Nallamangai Ammal2. There seems to be considerable force in the argument of Mr. Ramachandra Iyer. The power of an Appellate Court to remand is contained in Order 41, rule 23, as amended in Madras. “Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in

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