An order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC.

1. The Plaintiff is the appellant in this appeal. The Plaintiff has filed the suit in O.S. No. 404 of 1997 for a decree directing the defendants to execute the sale deed for half share in the suit property after receiving the value tobe fixed by the Court.

2. According to the plaintiff, the first defendant is her brother and the second defendant is the daughter of the first defendant. The suit property was owned by Plaintiff and first defendants mother Girija Ammal who died intestate leaving behind the plaintiff and defendants 1 and 2. Therefore, the plaintiff is entitled to half share and the first and second defendants put together have half share in the suit property left by Girija Ammal. But without the plaintiffs consent and knowledge, even though the plaintiff sought to purchase the half share of the defendants 1 and 2 under the right of pre-emption, the suit property was sold by them to the third defendant clandestinely. The third defendant not only purchased the half share owned by the defendants 1 and 2 but a larger extent of land and therefore the sale is invalid, hence, the suit was filed.

3. The first and second defendant remained exparte before the trial court. The third defendant/purchaser contested the suit stating that he is a bonafide purchaser for valuable consideration. It was further contended that the defendants 1 and 2 were in long possession and considering the same, patta was also granted in their favour for a larger extent of land. Therefore, the purchaser of the property by the third defendant, which is also covered by the patta issued in favour of the defendants 1 and 2 is valid and legal.

4. The trial court, after considering the oral and documentary evidence, decreed the suit as prayed for directing the defendants to execute the half share in the suit property in favour of the plaintiff. Aggrieved by the same, the third defendant filed A.S. No. 12 of 2005

5. During the pendency of the first appeal, the defendants 1 and 2, who remained exparte before the trial court, filed I.A. No. 209 of 2005 before the first appellate Court seeking to mark certain documents namely patta etc., to prove the extent of land sold by them to the dthird defendant. Thereafter, the plaintiff/respondent in the first appeal also filed I.A. No. 153 of 2006 for production of certain documents which are in her custody. The first appellate Court, taken up both I.A. No. 209 of 2005 and I.A. No. 153 of 2006 together and by a common judgment and decree dated 16.10.2005 found that there is a dispute between the plaintiff and the defendants with regard to the extent of land occupied by the plaintiff and the extent of land sold to the third defendant and remanded the matter back to the trial court for fresh consideration so as to enable the parties to adduce further evidence. Aggrieved against the said order dated 16.10.2005, the present Civil Miscellaneous Appeal is filed by the plaintiff.

6. The main ground of attack of the plaintiff/appellant is that the first appellate Court has got every right to permit the parties to let in evidence, enquire into the dispute in detail, appoint an advocate commissioner, if necessary, to call for the records, amend the pleadings etc., but ordinarily the first appellate Court should not take recourse to remand the matter to the trial court for considering the dispute afresh. Inasmuch as there is no specific finding rendered by the first appellate Court that the decree and judgment passed by the trial court is improper or irregular, as required under Order 41 Rule 23A of CPC, the order of remand is vitiated. Merely because both the plaintiff and the defendants 1 and 2 have sought to produce certain documents to prove their respective case, the first appellate Court ought not to have remanded the matter back to the trial court.

7. The learned counsel appearing for the respondents submitted that the order of remand is right since the crux of the issue for determination is whether the sal