JUDGMENT J. C. Shah, J. 1. A Shankararamiah hereinafter referred to as the 'appellant' filed three suits in the Court of the Subordinate Judge, Madurai. Suit. No. 198/52 was filed against Lakshminarayanamoorthi - respondent No. 1 - and Sitalakshmi - respondent - No. 2 the nephew and wife respectively of the appellant, for a decree for possession of certain property alleging that the property belonged to him and was leased by respondent No. 1 holding a power of attorney from the appellant and for rendition of accounts of the management by Respondent No. 1. Respondents 1 and 2 resisted the suit contending that the lands were settled by the first respondent upon the second respondent Sitatakshmi in exercise of authority conferred upon him in that behalf by the appellant, and that the appellant had no subsisting title thereto. Suit No. 26 of 1953 was filed by the appellant also against respondent Nos. 1&2 for possession of the property described in the plaint alleging that he had been coerced into executing a deed relating to his property and that the deed was not intended to be operative and was not intended to be operative and was not in fact acted upon. Respondents 1& 2 denied the allegations. Suit No. 14 of 1953 was filed by the appellant for dissolution of his marriage with the second respondent on the ground that the second respondent was living in adultery with respondent No. 1 and desertion. The second respondent denied the allegations on which the claim for dissolution for marriage was founded. On June 16, 1954 the appellant and respondents 1 and 2 referred with the sanction of the Court the disputes in the three suits to arbitration of S. Balasubramanian Iyer and T. G. Krishnamoorthy. On June 19, 1955 the parties filed a joint statement in Court that: "The Arbitrators may discontinue taking further evidence which is going on before them. The Arbitrators may give their decision after perusing plaint, written statement and documents and talking to the parties separately. We undertake to abide by their decisions." The arbitrators made their award on August 28, 1955, wholly rejecting the claim of the appellant in Suits Nos. 26/1953 and 14/1953, and making certain arrangement in respect of the property which was the subject - matter of Suit No. 198 of 1952. We undertake to abide by their decisions." The arbitrators made their award on August 28, 1955, wholly rejecting the claim of the appellant in Suits Nos. 26/1953 and 14/1953, and making certain arrangement in respect of the property which was the subject - matter of Suit No. 198 of 1952. The award was filed in Court and notice of filing of the award was served upon the parties. The appellant applied to the Court for an order setting aside the award and directing that the suits be heard by the Court and disposed of according to law. The Subordinate Judge rejected the application and ordered that decrees be made in the three suits pursuant to the award. 2. Out of the many grounds set up in support of the application for setting aside the award, the following grounds were relied upon at the hearing before the Subordinate Judge: (1) That the arbitrators were guilty of misconduct in that they did not give an opportunity to the appellant to produce documents which he desired to produce, and examined the first respondent in the absence of the appellant, and received a written statement from the respondent without the knowledge of the appellant. (2) That the arbitrators did not meet after June 19, 1955 and made their award without joint consultation. (3) That the award created an estate unknown to law and was opposed to the evidence. The Subordinate Judge held on the affidavits filed before him that there was no substance in the contentions raised by the appellant. 3. Against the order of the Subordinate Judge in the three suits, appeals were preferred by the appellant to the District Court at Madurai. The District Judge set aside the order of the Subordinate Judge holding that "there had been no satisfactory disposal of the application to set aside the award" for the affidavit of the appellant raised serious questions relating to misconduct of the arbitrators, and the affidavits in rejoinder filed by the respondents were 'vague and indefinite' and that the case should have been decided on evidence vive voce, or on "more definite affidavits". He accordingly remanded the proceedings "so that the question as to what happened after 19th June, 1955 may be satisfactorily decided on taking evidence", and directed that if the "Subordinate Judge still thinks that the matter can be decided on affidavits, affidavits should be called for specifically stating the facts not only from the parties but also from the arbitrators". 4. In exercise of its revisional jurisdiction the High Court of Madras at the instance of the second respondent Sitalakshmi set aside the order of the District Judge and restored the order of the Court of first instance. In the view of the High Court the grounds set up by the appellant in support of his application for setting aside the award were unsubstantial, and therefore the direction for a rehearing was not justified. Against the order passed by the High Court this appeal is brought by the appellant with special leave. 5. The appellant says that the High Court exercising jurisdiction under S.115 of the Code of Civil Procedure had no power to set aside the order of the District Court, for the District Court had not assumed jurisdiction which it did not have, nor did it fail to exercise its jurisdiction nor did it act in exercise of its jurisdiction illegally or with material irregularity. 6. An award filed in Court may, by S.30 of the Arbitration Act, 1940 be set aside on the ground, amongst others, that it has been 'improperly procured or is otherwise invalid'. S.32 of the Act prohibits institution of a suit on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, and provides that an arbitration agreement or award may be set aside, amended, modified or affected in any way only as provided in the Act. S.33 of the Act provides "Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question in affidavits : Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also xxxxxxx". S.33 is complementary to S.32. S.33 is complementary to S.32. It prescribes the procedure to be adopted by a party to an arbitration agreement or to an award who desires to challenge the existence or validity of the arbitration agreement or the award. The remedy of the party aggrieved is therefore by an application and not by a suit, and the questions raised in the application have normally to be decided on affidavits, unless the Court deems it just and expedient to direct that the application may be heard on other evidence also. 7. The appellant in his application submitted that the arbitrators were in the course of the proceeding before them guilty of misconduct in that they gave no opportunity to the appellant to produce documentary evidence, heard the first respondent in the absence of the appellant, and took a written statement without giving intimation in that behalf to the appellant, and made their award without holding a meeting after June 19, 1955. But the parties had expressly agreed that the arbitrators could decide the dispute, after perusing the pleadings and documents, and "after talking to the parties separately". The appellant did not apply before the Subordinate Judge for an order that the application be heard on oral evidence. The appellant was willing to have the matter disposed of on affidavits filed by the parties. Undoubtedly the Court may if it deems it just and expedient, set down the application for hearing on other evidence even if no request is made in that behalf by the parties. But the question is one of discretion and if the Trial Judge was of the opinion that the case could be disposed of an affidavits and did so proceed to decide, the regularity of the procedure will not be exposed to attack merely because allegations of misconduct are made against the arbitrators. Again the plea that the arbitrators had mis-conducted themselves was inconsistent with the recitals made in the award and no attempt was made in the Trial Court to summon the arbitrators for examination. The District Judge set aside the order passed by the Subordinate Judge merely because in his view the affidavits of the first respondent and the recitals in the award on which reliance was placed by the Trial Court were "vague and indefinite". The Trial Court held on the affidavits that the case of the appellant was not made out. The District Judge set aside the order passed by the Subordinate Judge merely because in his view the affidavits of the first respondent and the recitals in the award on which reliance was placed by the Trial Court were "vague and indefinite". The Trial Court held on the affidavits that the case of the appellant was not made out. It does not appear that the respondents desired at any, time to rectify the alleged defects in their affidavits: they were content to rest their case on the materials on the record. Nor does it appear that the appellant desired to lead evidence which he could have led but was prevented for some adequate reason from leading. 8. An order remanding a proceeding may ordinarily be made under Order 41 R.23 of the Code of Civil Procedure when the Trial Court had decided the case on a preliminary point and the Appellate Court reverses the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceedings and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of the process of Court. But power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the Court of first instance have failed to do so. A trial de novo, after setting aside a final order passed by the Court of first instance may therefore by made in exceptional circumstance, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court. The District Court did not decide the appeals on the merits, but merely ordered that the cases be remanded for retrial. In so ordering, in our judgment, the District Court acted illegally and with material irregularity in the exercise of its jurisdiction. Manifestly neither the statutory jurisdiction nor the inherent jurisdiction of the Court to direct a rehearing and retrial could be invoked. In so ordering, in our judgment, the District Court acted illegally and with material irregularity in the exercise of its jurisdiction. Manifestly neither the statutory jurisdiction nor the inherent jurisdiction of the Court to direct a rehearing and retrial could be invoked. 9. The High Court has considered the merits of the dispute between the parties and has agreed with the conclusion of the Trial Court that the appellant failed to prove his case that the arbitrators had mis-conducted themselves in the course of the arbitration proceeding. We see no reason to enter upon a reappraisal of the evidence, which the Court of first instance, and the High Court had appraised, especially when they have recorded concurrent opinions. The appeal fails and is dismissed. There will be no order as to costs.