R.M. Lodha, J. 1. Delay condoned.

2. Leave granted.

3. The appellant herein is plaintiff No. 2. He, along with two others, namely, Gnanasoundari and George filed a Suit against the present respondent No.1 for declaration, permanent injunction and mandatory injunction.

4. The respondent No. 1 contested the Suit on diverse grounds.

5. After recording evidence and on hearing the parties, the trial Court on September 16, 1999 decreed plaintiffs’ Suit for the grant of permanent injunction.

6. Aggrieved by the judgment and decree dated September 16, 1999, the respondent No.1 preferred first appeal which came up for hearing before the Subordinate Judge, Tiruchirapalli. On hearing the parties, the first appellate Court, allowed the appeal, set aside the judgment of the trial Court and remanded the Suit back to the trial Court with a direction to give an opportunity to both the parties to let in evidence – oral and documentary— and then decide the Suit afresh on merits.

7. The order of remand dated April 8, 2002 was challenged by the present appellant and present respondent No. 2 by filing a Miscellaneous Appeal before the High Court under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (for short ‘the Code’).

8. The High Court, by its order dated 26th September, 2008, held that the Civil Miscellaneous Appeal was not maintainable and dismissed the appeal on that ground.

9. The appellant and the respondent No. 2 then filed a petition before the High Court seeking review of the order dated September 26, 2008. However, the Review Petition was also dismissed on November 12, 2009. It is from these two orders that the present appeal has arisen.

10. Order 41 of the Code provides for appeals from original decrees. The Code empowers the appellate Court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23A and Order 41 Rule 25 which read as under:

23. Remand of case by Appellate Court -

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 appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

23A. Remand in other cases -

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from -

Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time.

11. Order 41 Rule 23 is invocable by the appellate Court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is