HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No. 4431 OF 2004 JUDGMENT: This C.M.A. is preferred assailing the judgment dated 27.9.2004 in A.S.No.98 of 2003 on the file of the Principal District Judge, Kurnool, whereby and whereunder the judgement and decree dated 12.9.2003 in O.S.No.261 of 2002 on the file of the Principal Junior Civil Judge, Kurnool was remanded to the trial court to afford an opportunity to the plaintiff enabling him to take necessary steps to cause production of documents containing the signature of deceased (G.Prabhakar) and to establish whether the disputed signatures and the admitted signatures were made by the same person, and dispose of the matter afresh. 2. One G.Prabhakar, who is the husband of D.1 and father of D2 and D.3, borrowed an amount of Rs.47,018/- from the plaintiff by executing the suit pronote on 20.3.1999 agreeing to repay the amount with future interest at 15% per annum. That he paid Rs.10,000/- on 20.9.1999 and Rs.10,000/- on 20.10.1999 and the same was endorsed on the back of the suit promissory note. Thereafter, Prabhakar died. After the death of Prabhakar, plaintiff demanded defendants, being his wife and children, to repay the balance amount. On their failure to repay the balance amount, the suit was filed. 3. Second defendant filed written statement questioning the genuineness of the suit promissory note and contending that he is a small farmer and is entitled for benefits of Act 7/77 and 45/1997. He denied the payment being made on two occasions and contended that the suit abated on the death of his father and that the suit is bad for non-joinder of necessary parties and as such, the same is liable to be dismissed. 4. Basing on the pleadings of the parties, the following issues were framed by the trial court. “i. Whether, the suit pronote dated 20.3.1999 is true, genuine and supported with consideration? ii.Whether the defendant is a small farmer and he is entitled for the benefits of Act 7/77 and 45/1997? iii. Whether the plaintiff entitled for the suit amount as prayed for? iv. To what relief?” 5. During the course of trial, plaintiff got himself examined as PW.1 besides examining one V.Prasad as PW.2 and got Exs.A.1 to A.3 marked on his behalf. Whereas, on behalf of the defendants, the second defendant was examined as DW.1 and Exs.B.1 to B.3 were marked on their behalf. Ex.A.1 is the suit pronote dated 20.3.1999. Exs.A.2 and A.3 are the endorsements on Ex.A.1 pronote to the effect that Rs.10,000/- was paid on 20.9.19991 and another Rs.10,000/- paid on 20.10.1999. Exs.B.1 and B.2 are xerox copies of pattadar pass books issued in favour of D.2 and D.3. Whereas Ex.B.3 is the xerox copy of the family members certificate of the deceased. 6. The trial court decided the first issue in favour of the defendants holding that the suit pronote did not contain the attestation and the disputed signatures of the deceased were not established and that there was no evidence to prove the payment alleged to have been made by the deceased. The trial court decided the second issue in favour of the plaintiff and against the defendants since the defendants failed to prove that the original debtor was a small farmer, and ultimately dismissed the suit. Challenging the same, the plaintiff filed A.S.No.98 of 2003 on the file of the court of Principal District Judge, Kurnool. 7. The lower appellate court after re-appreciating the evidence brought on record by both the parties before the trial court and also taking into consideration the facts and circumstances of the case, allowed A.S.No.98 of 2003 remanding the matter to the trial court to afford an opportunity to the plaintiff enabling him to take necessary steps to cause production of documents containing the signature of deceased (G.Prabhakar) and to establish whether the disputed signatures and the admitted signatures were made by the same person, and dispose of the matter afresh. Hence, this C.M.A. 8. Heard the learned counsel on either side. 9. It is canvassed on behalf of the appellants-defendants that the lower appellate Court, instead of deciding the appeal itself, remanded the matter to the trial Court with certain instructions/directions to give an opportunity to the respondent-plaintiff to take necessary steps to cause production of the documents containing the signature of the deceased in order to establish whether the disputed signatures and the admitted signatures were made by the same person, and then dispose of the matter. It is further canvassed that though there was no base in the pleadings that the respondent-plaintiff could not establish his case and that the additional evidence could not be produced in spite of diligence when the matter was pending in the trial Court, the lower appellate Court has taken upon itself advisory jurisdiction in directing the trial Court to give an opportunity to the respondent-plaintiff to cause production of documents as stated hereinabove and the same is not sustainable in law as the same goes against the provisions of Order 41 Rule 27 C.P.C. 10. In view of the provisions under Order 41 Rule 27 CPC, this Court is not inclined to accept the contention of the learned counsel for the appellants-defendants. Further, the appellate Court would have all the powers of the trial Court. Moreover, an appeal suit is nothing but the continuation of the suit itself. Therefore, this Court is of the view that the contention raised by the learned counsel is misconceived and not tenable in law and the same does not stand for judicial scrutiny. 11. Having heard the learned counsel for both the parties and having perused the documents on record, this Court is of the view that the lower appellate Court has not committed any error or irregularity in remanding the matter to the trial Court with a direction to decide the matter afresh after giving an opportunity to the respondent-plaintiff to produce the documents containing the admitted signatures of the deceased since it is not likely to cause any kind of prejudice to the appellants-defendants. 12. In the facts and circumstances of the case, this Court is of the view that the impugned judgment does not suffer from any infirmities, as such, it is not liable to be interfered with in any manner. Hence, the C.M.A. is dismissed. No costs. ________________ B.N.RAO NALLA,J -04-2010 Stp