J U D G M E N T

In this Original Petition(Civil) filed under Article 227 of the Constitution of India the petitioners seek to call for the records leading to Ext.P7 order in E.P.No.1904/2009 in O.S.No.8/2000 on the file of Additional Munsiff Court, Irinjalakuda dated

30.10.2021 and to set aside the same.

2. The specific contention raised by petitioners 1 and 2, who are judgment debtors 2 and 3/defendants 2 and 3 in the above case is that originally O.S.No.8/2000 was filed by one Jose, the 1st respondent, herein as plaintiff for fixing the northern boundary of plaint A schedule property and for recovery of C schedule property in the event of the same forming part of the plaint A schedule property. After trial, suit was decreed by the Munsiff and the plaintiff was allowed to recover possession of

1.88 cents of property comprised in Sy.No.184/1 as identified in Ext.C1(a) plan from the possession of the defendants. Challenging the said decree, A.S.No.173/2002 was filed by the defendants before Principal Sub Court, Irinjalakuda and the said appeal was dismissed confirming the decree. Against which, R.S.A.No.560/2007 was filed and this Court delivered judgment on 15.12.2014. As per judgment of this Court, the decrees and judgments of the trial court and the first appellate court were confirmed and thereafter the case was remitted back to the trial court for the limited purpose of deciding the quantum of compensation to be given to the plaintiff to retain possession of plaint B schedule property by the defendants ordered to be recovered and for this purpose, the trial court was directed to depute a commissioner to value the property.

3. It was thereafter as per Ext.P5 judgment dated

29.06.2015, the learned Munsiff ventured the limited question referred by way of remand and finally directed the defendants to pay Rs.9,40,000/- as compensation to retain plaint B schedule property. Since the defendants did not obey Ext.P5 order, the decree holder put the decree in execution by filing E.P.1904/2009 which led to Ext.P7 order when the defendants raised the contention that the decree and judgment confirmed by this Court cannot be executed. As per Ext.P7 the execution court negatived the contention and found that the decree is executable for recovering possession of B schedule.

4. The petitioners would contend that Ext.P7 order is illegal as after the order of remand the decree and judgment of the trial court and the first appellate court deemed to have been reversed as it is mandatory to reverse the decree and judgment before remanding a matter to the trial court.

5. It is in this context the power of the appellate court to remand a matter and the conditions required to order remand are to be discussed. At the same time, a pertinent question as to whether a remand order by itself would operate as deemed reversal of the decree and judgment under challenge also to be answered.

6. It is contended by the petitioners that as per Order 41 Rule 23 of Code of Civil Procedure, an appellate court has the power to remand a case only on satisfying 2 conditions. Decision reported in [2016 (4) KHC 160], John A.Augustine v. M.R.Renjan & Ors. of this Court has been given emphasis in this regard. In fact, this Court considered the scope of remand in this case and it was observed that on a close reading of R.23A of O.41 of the Code it will be evident that, to invoke the power, vested in an Appellate Court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the Appellate Court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the Appellate Court can step into the next arena. Second condition to be satisfied for invoking the power is that, the Appellate Court on merits, should find that a retrial is essential for the complete adjudication of the lis between he parties. Well settled is the proposition of law that whether the Court should or should