SAO 1/2003 BEFORE HON’BLE MR. JUSTICE B D AGARWAL This appeal is at the instance of the defendants. The appellants are challenging the order dated 24.12.2003, passed by the then District Judge, Morigaon, in Tit le Appeal No. 4 of 2002, remanding Title Suit No. 12 of 2001 to the Court of Civ il Judge (Senior Division), Morigaon, for fresh decision. 2. Heard Sri B C Das, learned Senior Counsel, for the appellants as well as Sri H K Deka, learned counsel for the sole respondent. 3. Sri Deka, learned counsel for the respondent, submitted that the second appeal is not maintainable, inasmuch, as, the appellate Court has framed fresh issues to be determined by the trial Court and as such, the impugned orde r is essentially under Order 41 Rule 25 of the Code of Civil Procedure. 4. On the other hand, Sri Das, learned Senior Counsel for the appel lant submitted that while passing the impugned order, the appellate Court has se t aside the Judgment of the trial Court and has remanded the suit for fresh deci sion and as such, the impugned order is essentially under Rule 23 A of Order 41 CPC. Sri Das further submitted that the appellate Court has also inherent powers under Rule 24 of Order 41 to frame issues itself and determine the case finally since neither party prayed for adducing fresh evidence. Sri Das also submitted that the appellate Court has whimsically framed certain issues which are not rel evant and some of the issues were already framed by the appellate Court. For ins tance, the trial Court had itself framed an issue regarding plaintiff’s right, t itle and interest over the suit land and these issues have been re-framed by the appellate Court. 5. Since the appellate Court has framed issues on its own the impug ned order can be considered as an order under Rule 25 to Order 41. At the same t ime, the operative portion of the order indicates that the appellate Court has s et aside the judgment of the trial Court and remanded the suit for fresh disposa l. In view of these directions, the order can be considered as an order under Ru le 23 A of Order 41 CPC, which is appealable under Order 43 Rule 1 (u) CPC, befo re this Court. 6. In view of the aforesaid contradictory directions, this second a ppeal is disposed of with a direction to the appellate Court to hear the appeal afresh. Needless to mention here that under Order 41 Rule 24, the appellate Cour t may determine the case finally if the evidences are sufficient. If for some re ason, the appellate Court feels necessity of taking additional evidence it can a lso take recourse to Rule 27. At the same time, if the appellate Court thinks it proper that the suit was not properly decided it can set aside the Judgment and remand the suit for fresh decision under Order 41 Rule 23 A. On the other hand, if the appellate Court feels that the suit is required to be remanded due to pa tent defects and deficiencies in framing of the issues and that there are no suf ficient evidence on record to decide the appeal on merit it can definitely reman d the case to the trial Court by way of framing additional issues. However, in t hat eventuality, the Judgment of the trial Court should not be set aside. In oth er words, the trial Court should be directed only to give its finding on the iss ues framed by the appellate Court and forward the findings to the appellate Cour t and thereafter, the appellate Court may decide the appeal on merit. 7. With the aforesaid observations, the appeal stands disposed of. The impugned order is hereby set aside. 8. Both the parties are directed to appear in the Court of learned District Judge, Morigaon, 01.11.2011, and receive further orders. 9. The Registry is directed to return the LCRs forthwith, along wit h a copy of this order.