By this judgment I propose to dispose of the Second Appeal No. 47 of 1977 along with a connected petition. 2. Narendra Nath Chakravarty, the principal defendant in Title Suit No. 127 of 1968 is the appellant herein who lias impugned the judgment and decree dated 25.2.77 passed by the learned Assistant District Judge, Darrang at Tezpur. The lear­ned Assistant District Judge, Tezpur, by the judgment and decree dated 25.2.77 allowed the appeal preferred by the plaintiffs whose Title Suit No. 127 of 1963 was dismissed by the Trial Court. The learned Appellate Court below while allowing the appeal, remanded the suit for determination of the point of limitation with a direction that an opportunity should be given to the parties to adduce fresh evidence on other points also namely, for production and proof of payment of consideration of the Sale Deed (Ext. 1) which the plaintiffs could not prove before the Trial Court. Thus, the learned Appellate Court below reman­ded the suit by setting aside the decree of the Trial Court. This has caused a controversy in this appeal like a storm in & tea cup. I may briefly set out the necessary facts. 3. The plaintiffs who are present respondents in this appeal brought an action against the defendants in title Suit No. 127 of 1963 in the Court of Sadar Munsiff at Tezpur claiming that the father of the plaintiffs and proforma defendant late Jatindra Prased Bose were brothers along with late Kaibalya Prasad Bose and they lived together by constituting a joint Hindu family and that the suit land was a joint property of the aforesaid undivided Hindu joint family. Late Kaibalya Prasad Bose was the 'karta' of the joint family and he acquired the suit land out of the joint family fund although the land in question stood in the name of late kaibalya. The suit land remained in joint ownership of all the brothers. That during his life time, late Kai­balya Prasad Bose mortgaged the aforesaid land by conditional sale to defendant No. 1. The defendant No. 1 taking advantage of Kaibalya's serious illness, surreptitiously filed a suit being Title Suit No. 1 of 1961 and obtained a preliminary decree expafte for foreclosure of the said mortgage property. That during his life time, late Kai­balya Prasad Bose mortgaged the aforesaid land by conditional sale to defendant No. 1. The defendant No. 1 taking advantage of Kaibalya's serious illness, surreptitiously filed a suit being Title Suit No. 1 of 1961 and obtained a preliminary decree expafte for foreclosure of the said mortgage property. Prelimi­nary decree was passed on 23.3.63 and it was followed by a final decree on 9.10.63 in favour of the defendant No. 1, the plaintiff in the said suit. Thereafter the plaintiffs has preferred the present suit claiming that the plaintiffs and the proforma defendants are the coparceners in respect of the half share of the properties in dispute. The plaintiffs therefore, claimed for a declaration of their title in respect of the suit land to the extent of their share and also they prayed for setting aside the exparte decree passed in Title Suit No. 1/61 in favour of defendant No. 1. The plaintiffs further prayed for issuance of an injunction restraining the defendants from inter­fering with their possession in respect of the suit land. 4. The defendant No. 1 filed a written statement conten­ding inter alia, that the suit was barred under Section 34 of the Specific Relief Act and that late Kaibalya Prasad Bose was not acting as a 'Karta' of the alleged joint Hindu family and that the suit land was the exclusive property of late Kaibalya Prasad Bose who mortgaged the same to defendant No. 1 by a conditional sale and on obtaining a decree, the title over the land was passed on to him and that the plaintiffs' claim was false and fabricated. The possession of the suit land by the plaintiffs was also denied by the defendant No. 1 in his -written statement. 5. The respective pleadings of the parties, gave rise to as many as 12 issues which were framed and formulated by the learned Trial Court. The parties led evidence oral as well as documentary in support of their respective claims taken in their respective pleadi­ngs. The learned Trial Court on considering the evidence on record on the issues framed in the suit, virtually decided all the issues in favour of the dsfeadant No. 1 (the appellant herein) and dismissed the suit. The parties led evidence oral as well as documentary in support of their respective claims taken in their respective pleadi­ngs. The learned Trial Court on considering the evidence on record on the issues framed in the suit, virtually decided all the issues in favour of the dsfeadant No. 1 (the appellant herein) and dismissed the suit. The plaintiffs thereafter preferred an appeal in the Court of the Assistant District Judge, Darrang at Tezpur being Title Appeal No. 4 of 1976 wherein they became successful to obtain a decree of reversal and favoured with a direction for fresh trial of the suit. While going through the impugned judgment, curiously enough, it is noticed that the learned first Appellate Court virtually agreed to the findings of the learned Trial Court on all the issues but on the question as to the point of limitation as raised by the defendants, decided to remand the suit also for decisions on other issues. The judgment and decree has been impugned by the appellant in this Second Appeal. 6. The principal ground on which the Appellate Court below remanded the suit may be quoted herein below: “12. It is therefore, decided that the suit be remanded with directions that an issue be framed on point of limi­tation and opportunity granted to both the parties to place their respective cases on this paint including evi­dence, if necessary, with a view to arrive at the correct decision on this point. 13. Since remand of the suit for determination on the point of limitation only will be infructuous and only technical it will be appropriate that the matter relating to the counterfoil of the cheque book and payment of the consideration for the Sale Deed Ext. 1 be also gone into, if necessary by calling for records and after giving opportunities to the parties to adduce such fresh and further evidence may be deemed necessary". 7. Now, the pre-eminent question to be considered in this appeal is whether the learned First Appellate Court was justi­fied is remanding the suit for fresh trial with a direction to give opportunity to the parties to adduce fresh and further evidence to prove certain facts which the plaintiffs failed to prove at the trial though the plaintiffs had sufficient opportu­nity to adduce such evidence in the Trial Court. I have heard Mr. I have heard Mr. J. P. Bhattacharjee, learned Advocate General, Nagaland representing the appellant and Mr. B.K. Das, learned counsel for the respondents. 8. A preliminary question has been raised by Mr. B. K. Das as to the competency of this Second Appeal in view of the fact that the order of remand as passed by the learned First Appellant Court was in accordance with the provisions laid down under Order 41 Rule 23A of the Civil Procedure Code, and if that be the position, the provisions of Order 43 Rule 1 is attracted. The provisions of Rule 23A of Order 41 may be quoted herein below: Order 41 Rule 23A "23 A. Remand in other cases- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is con­sidered necessary, the Appellate Court shall have the same powers as it has under rule 23." Rule 23 of Order 41 deals with an order of remand of a ease by an Appellate Court, in case, the suit is disposed of upon a preliminary point and if it is in the opinion of the Appellate Court that the decree is liable to be reversed, the Appellate Court may, if thinks fit, remand the case with a further direction that issue or issues shall be tried in the case so remanded. Therefore, on perusal of both the Rules conjointly, it appears that the Rule 23A of Order 41 of the Code has been inserted by the Amendment of 1976 to empower the Appe­llate Court to make an appropriate order of retrial if it is so considered necessary. On perusal of the impugned judgment it appears that the remand order for retrial of the suit was by reversing the decree of the Trial Court. At this stage it would be appro­priate to quote the provisions of Rule 25 of Order 41 of the Code. "25. On perusal of the impugned judgment it appears that the remand order for retrial of the suit was by reversing the decree of the Trial Court. At this stage it would be appro­priate to quote the provisions of Rule 25 of Order 41 of the Code. "25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time." On bare perusal of the above provisions of Rule 25 of Order 41 C.P.C., it is crystal clear that the remand order of the learned Appellate Court below as per impugned judgment cannot come within the purview of Rule 25 of Order 41 C.P.C.. On further perusal of the operative portion of the im­pugned judgment it cannot be said that the impugned judgment has been rendered in compliance with the provisions of either Order 41 Rule 32A or under Rule 25 of the C.P.C. Therefore, it becomes clear that the impugned order of remand was passed by setting aside the decree of the Trial Court, amounting to be a decree of reversal though a direction has been issued. Therefore, the final conclusion can be arrived at on this pertinent point that if the order of remand was con­templated under Rule 23A of Order 41 of C.P.C., a Second Appeal is not competent but an appeal shall lie as it is an appealable order. 9. Mr. J. P. Bhattachajee, learned Advocate General, has vigorously advocated that a Second Appeal is competent from the impugned order of remand as because it was a clear case of reversal of the decree of the Trial Court. 9. Mr. J. P. Bhattachajee, learned Advocate General, has vigorously advocated that a Second Appeal is competent from the impugned order of remand as because it was a clear case of reversal of the decree of the Trial Court. In this context the learned counsel has also advanced argument almost in the same line but with limited scope on the legal question that has been involved in this case in view of the remand order passed by the learned Appellate Court below. Mr. B. K. Das, teamed counsel for the respondents has submitted that if in case it is held that this Second Appeal is not maintainable then the question that may arise for consideration in the revision application would be only on a limited scope to the extent of jurisdictional error of the Court below to try the subject matter itself and not otherwise. Mr. Das, the learned counsel for the respondents has further submitted that this Second Appeal is not competent in view of the fact that Order 43 Rule 1(x) has prescribed the mode of redress which is not certainly by preferring a Second Appeal. On considering the rival contentions of the learned counsel for the parties and on scrutiny of the impugned judgment on the basis of the relevant provisions of law, I am of the opinion that in the present nature of the case, the Second Appeal is competent as the decree was reversed by the Appellate Court and not covered by the provisions of Order 41 Rule 23-A of C.P.C. 10. The learned First Appellate Court directed to frame an issue on the basis of the plea taken by the defendants that the suit was barred under section 34 of the Specific Relief Act. But as that issue was not pressed further, that issue was deci­ded in favour of the plaintiff, A plea was raised that the suit was barred by limitation possibly on the ground that the final decree was obtained sometime in 1963 and the suit was filed in the year 1961 with a prayer to set aside the decree dated 23.3.63 passed in Title Suit No. 1/61 against the plaintiffs. The plea taken by the plaintiffs in filing the suit after long 5 years was as because they did not get any information about the exparte decree passed in Title Suit No. 1/61. The plea taken by the plaintiffs in filing the suit after long 5 years was as because they did not get any information about the exparte decree passed in Title Suit No. 1/61. They became aware of the decree only when the execution case was filed sometime in 1965 and that too was only on 3.11.65. Thereafter the suit was filed on 7.11.68 even after expiry of 3 years from the date of accrual of cause of action. The learned First Appellate Court dealt with this matter and concluded that on points of law like limitation there is no bar imposed on the Court to take up the issue of limitation suo-moto even at any stage of the case. But curiously enough, the learned Appellate Court concluded that this matter came up during argument and no issue on limitation was framed and on that ground it was necessary to frame an issue on the point of limitation. It was further found by the learned Appellate Court that in the tail end of judgment, the learned Munsiff discussed the point relat­ing to limitation and came to the conclusion that the suit was barred by limitation. In the Trial Court, when the argument was concluded, the plaintiffs filed a petition on 16.12.75 stating inter alia, that the decree was obtained surreptitiously and without the knowledge of the plaintiffs and till 12.4.66, the plaintiffs had no knowledge about the existence of a decree. Therefore, the cause of action for this suit arose from the date of knowledge, i. e., from 12.4.66 and the suit was filed well within time. This was done only by way of an application. In the plaint, the cause of action has been clearly stated in paragraph 8 of the plaint which runs as follows: “8. That the cause of action of the suit arose at Tezpur on the date of exparte decree passed on 23.3.63 in T.S. No. 1 of 1963 and on 3.11.65 when title Execution Case No. 1 of 1965 was filed in the Court of Subordinate Judge, Tezpur.” On the face of such clear averments made in paragraph 8 of the plaint as to the accrual of the cause of action, what was the gain to file a further petition by the plaintiffs at the close of the trials stating a different date for accrual of the cause of action ? Will it not amount to change the character of the suit itself and the cause of action ? I do not find any material on records to approve this subsequent action. It is settled law that the plaintiffs cannot be allowed to change the entire character of the suit and the accrual of its cause of action if the subsequent insertion of the cause of action bring revival of a dead case which had already expired by lapse of time and the suit became barred in view of the Law of Limi­tation. Though the learned First Appellate Court discussed this matter thread-bear, still he felt it necessary to remand the case with a direction to frame an issue on the point of limitation. Is it permissible under the law ? If not, the learned Appellate Court below had committed an error liable to be interfered with by this Court. The learned First Appellate Court had conceded to all the findings arrived at by the learned Trial Court except on the point of limitation. This was only for the reason that there was no issue framed on that point. The concluding portion of the impugned judgment appears to be a peculiar in nature and unusual in manner in the sense that the learned Appellate Court below ramanded the suit for fram­ing of an issue on the point of limitation and for a decision on that issue with a further direction that the determination of the point of limitation would be infructuous and only tech­nical in nature. The Appellate Court below did not stop there, But further directed that the mitter relating to counterfoil of the cheque book and payment of consideration of the Sale Deed (Ext. 1) be also gone into, if necessary by calling for records and that too after giving full opportunity to the parties to adduce fresh or further evidence to that affect. This is probably made with a view to allow the plaintiffs to prove the existence of a joint family as pleaded by them. But strongly enough the leaned First Appellate Court while deciding the Issues Nos. 5, 6, 7, 8 & 9 relating to the question of title of the plaintiffs conclusively held that the plaintiff Kamakhya Prasad Bose did not depose in Court to testify that he paid the consideration money in the name of his late uncle Kaibalya. But strongly enough the leaned First Appellate Court while deciding the Issues Nos. 5, 6, 7, 8 & 9 relating to the question of title of the plaintiffs conclusively held that the plaintiff Kamakhya Prasad Bose did not depose in Court to testify that he paid the consideration money in the name of his late uncle Kaibalya. It was further held by the First Appellate Court that the efforts made by the plaintiffs in proving the existence of a joint family by the oral testimonies of the witnesses did not convince the Trial Court and as such there was nothing to interfere with the deci­sion of the Trial Court. On the face of the above findings of the learned First Appellate Court, was it justified to allow the plaintiffs a further opportunity to adduce further evidence to prove certain facts which the plaintiffs failed to prove at the trial ? It is not the case of the plaintiffs that no oppor­tunity was afforded to the plaintiffs to produce those evidence in course of trial. Atleast, this is not revealed from the impugned judgment. Therefore, what was the justification to allow such an opportunity to the plaintiffs and to remand of the suit for fresh trial ? No doubt, the Appellate Court has power under Section 107 of the C. P. C. to remand a case or to frame issues and return them for retrial, or to take additional evidence or require such evidence to be taken. The exercise of this power is regulated by Rules 23 to 25 and 27 of Order 41 C. P. C.. Rule 24 provides that where the evidence on record is sufficient to enable the Appellate Court to pronounce judgment it may do so. Order 41 Rule 27 of the Code deals with production of additional evidence in the Appellate Court for which it prescribes the conditions upon which additional evidence can be allowed to be adduced. Rule 25 of the Code prescribes the power of the Appellate Court to frame issue and refer the same for trial to the Court below, if need be, by taking additional evidence. Rule 25 of the Code prescribes the power of the Appellate Court to frame issue and refer the same for trial to the Court below, if need be, by taking additional evidence. It permits to adopt this course if the Trial Court had omitted to (i) frame an issue (ii) try an issue or (iii) to determine any question of fact which appears to the Appellate Court essential to arrive at a right decision of the wit upon the merits. This is what exactly laid down by their Lordships of the Supreme Court in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati : AIR 1965 SC 364 . 11. In the above context, it is to be considered now as to whether any of the circumstances as laid down above was a competing factor for such remand. On going through the impugned judgment, it appears that the learned Appellate Court gave concurrent findings with that of the Trial Court relating to relevant issues. Therefore, there was no basis for remand of the case with a direction for retrial of the suit on the pointed issues besides the point of limitation. The point of limitation has also been decided apparently on considering the merits of the case and on the basis of the cause of action as narrated in paragraph 8 of the plaint. Therefore, the learned First Appellate Court had incorrectly held that an issue is to be framed. There was no justification to conclude that the said issue, if decided, would be only technical in nature and in fructuous. If that be the position, what was the necessity to render a direction for framing of an issue of limitation which the learned First Appellate Court itself had considered ? While the suit has been disposed of on merits particularly on all issues and agreed to by the learned First Appellate Court with its concurrent findings, the impugned order can not be held to be justified and as such it is not tenable. 12. While considering the merits of this appeal, I am to consider also the cross objection of the respondents. Mr. 12. While considering the merits of this appeal, I am to consider also the cross objection of the respondents. Mr. B. K. Das, the learned counsel for the respondents has strenuously urged before me that while deciding issue No. 7, the learned Appellate Court below failed to consider the effect of passing of the final decree without full compliance of the provisions of Order 34 of the C. P. C.. Mr. Das has submitted that there was no service of notice in accordance with the provisions of law as required to be complied with under Older 34 of C.P.C before passing of such final decree. The issue No. 7 had been left practically undecided on that score. Let me consider this aspect of the matter as raised by Mr. Das. Issue No. 7 runs as follows : "Whether the defendant No. 1 surreptitiously obtained the exparte decree of foreclosure in T. S. No. 1/61 ?” The above issue was framed on the basis of the pleadings of the parties, more so, as per averments made in para-6 of the plaint. There is no other averments made in the plaint complaining such non-compliance of the provisions as laid down .under Order 34 of C. P. C. Therefore, there was no scope for the Courts below to consider that aspect of the matter in this suit. It is not possible now for this Court to make out a new case for the respondents not specifically agitated earlier at any stage either in the Trial Court or in the first Appellate Court. The next challenge of Mr. Das is that Issue No. 6 was wron­gly decided even on the admitted fact that the plaintiffs being the legal heirs of late Kaibalya Bose have substantial right, title interest in the suit land. On this score also I do not find any scope in this Second Appeal to reassess the evidence further at this end. Therefore, I do not find any merit in the cross objection. 13. Therefore, I hold that the learned Appellate Court below was not justified to remand the case afresh particularly in view of the findings in para-8 of the impughed judgment, The learned First Appellate Court below held : "8. So far as the decree of foreclosure passed in Title Suit No. 1 of 1961 is concerned, no evidence was led to hold that it was obtained surreptitiously. So far as the decree of foreclosure passed in Title Suit No. 1 of 1961 is concerned, no evidence was led to hold that it was obtained surreptitiously. I, therefore, agree with the decisions of the Trial court in regard to issues No. 7 & 8. Similarly, there appears to be nothing to inter­fere with the trial Court's decision in issues No. 9, 10, 11 & 12." (at page-46, para-8) So far as regards the decisions on issues Nos. 5 & 6, there is a clear finding of the Appellate Court below to the following effect "nothing to interfere with the decision of the Trial Court". This was arrived at on consideration of the evidence on record. If that be the position, it can be conclusively held that the learned Appellate Court below was not justified to pass an order for remand of the suit with a liberty to the parties to adduce fresh evidence on any score. Therefore, it is a fit case where this Court can interfere with the impugned judgment to that extent. The Appellate Court may either agree or disagree with the findings of the of the learned Trial Court. But after render­ing a concurrent funding on the merits of the case, the learned Appellate Court cannot alter its decision with a direction to remand the suit virtually by reversing the judgment of the Trial Court. While the plaintiffs failed to prove the case even inspite of having full opportunity at the Trial Court, there was no justification to allow the plaintiffs to fill up the lacuna by adducing fresh evidence. Moreover, when the matter in dispute could be disposed of on the basis of sufficient materials on record, there was no justification for remand of the suit. Further­more the remand cannot be ordered to fill up the deficiencies of a party (see A. I. R. 1965 S. C. 365). Mr. J. P. Bhattacharjee, the learned counsel for the appellant submits that this remand order can be challenged in this appeal as the effect of remand is that of setting aside the judgment and decree of the Trial Court. This submission has sufficient force. 14. For the reasons set forth above, I am of the opinion, that the impugned judgment and decree of the learned App­ellate Court below must be set aside. This submission has sufficient force. 14. For the reasons set forth above, I am of the opinion, that the impugned judgment and decree of the learned App­ellate Court below must be set aside. In the result, this app­eal is allowed and the order of remand of the learned Appe­llate Court is set aside and the judgment and decree of the learned Trial Court is hereby restored. In view of the facts and circumstances of the case I leave the parties to bear their own costs.