IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.986 of 2005 Date: 6th August, 2010 Between: Kongala Adi Reddy and another. .. Petitioners And Kalvacherla Yella Swamy .. Respondent ORAL JUDGMENT: This Civil Miscellaneous Appeal under Order 43 Rule 1(u) of Civil Procedure Code is directed against the judgment and decree made in A.S.No.101 of 2003 dated 31.1.2005 on the file of the learned Principal District Judge, Warangal, whereunder the judgment and decree made in O.S.No.1624 of 1999 dated 18.8.2003 on the file of the learned II Additional Junior Civil Judge, Warangal in decreeing the suit was set aside and the matter was remanded, with directions, for fresh consideration. Appellants are plaintiffs and respondent is defendant. Appellants laid suit in O.S.No.1624 of 1999 for recovery of money on the basis of promissory note. The said suit was decreed as prayed for. Aggrieved thereby, respondent filed A.S.No.101 of 2003 on the file of the learned Principal District Judge, Warangal. The appellate Court, after perusal of the judgment of the trial Court and other material placed before it, allowed the appeal setting aside the judgment and decree passed by the trial Court and remanded the matter with directions and both the parties were directed to appear before the trial Court on 10.2.2005 and further directed the lower Court to dispose of the matter within three months. Being aggrieved by the said judgment, the present C.M.A. is filed. The learned counsel Sri Podili Hari Prasad, appearing for appellants strenuously contended that firstly, absolutely there is no necessity of remanding the matter for reconsideration by the trial Court and; secondly, even if the lower appellate Court felt that the attestor and scribe were not examined, it could have permitted the parties to examine them and would have decided the matter on merits. Instead of doing so, the lower appellate Court had remanded the matter for reconsideration, which is nothing but a wasteful exercise. In support of his case, the learned counsel relied on the judgment in KUMMARI JANGAIAH (DIED) PER L.RS. v. SOMAVARAPU SAVITHRI[1] and submitted that appeal is in fact the continuation of suit and the appellate Court can resort to step of remand, only when a specific finding is recorded as to the deficiencies in the matter of disposal of suit by the trial Court. The fact that a different view is possible on an issue in the suit, is not at all a ground to remand. Whereas the learned counsel appearing for respondent Sri P.Prabhakar Reddy supported the impugned judgment passed by the lower appellate Court and submitted that the crux of the matter is as to under what circumstances, the promissory note was executed by the defendant. Even according to the defendant, though he admitted the signatures on the promissory note, the same were obtained under threat and coercion. In fact, there were some criminal cases filed against the plaintiffs. May be, those criminal cases were not pursued, still the fact remains that the trial Court ought to have come to a definite conclusion that the promissory note was not executed under any threat or coercion and for this purpose, the lower appellate Court has rightly came to the conclusion that unless and until the attestor and scribe are examined to ascertain as to under what circumstances, it was executed, the matter cannot be decided. Apart from that, no consideration was passed under the promissory note. Therefore, the lower appellate Court has rightly remanded the matter to the trial Court for reconsideration. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned judgment and other material made available on record. At the outset, it may be noticed that immediately after execution of the promissory note, the defendant had filed criminal cases against the plaintiffs before the Police concerned and even crime was registered and thereafter the matter could not be pursued to the end. Further, it is the case of the respondent-defendant that the promissory note was executed under threat and coercion and no consideration was passed. Looking from this angle and also the criminal proceedings initiated earlier, the appellate Court found that unless and until there is a categorical finding as to passing of consideration and the circumstances under which the promissory note was executed are brought out, particularly after examining the attestors and the scribe. The finding of the lower appellate Court reads as under: “As such the judgment and decree passed by the lower court is set aside and the mater is remanded to the lower court to consider afresh the rival contentions and to record a clear finding of the execution of the promissory note and then proceed whether it is supported by consideration or not and also consider whether there was a legal hypothecation of the property or not”. In view of the above, it cannot be said that the remand order passed by the lower appellate Court is arbitrary or illegal. The judgment relied upon by the learned counsel for appellant has no relevance to the facts of the present case. For the foregoing reasons, the C.M.A. is devoid of merits and liable to be dismissed and accordingly dismissed. No order as to costs. ______________ C.V.RAMULU, J Date: 6.8.2010 DA [1] 2005 (2) ALT 578