JUDGMENT : S.C. Mohapatra, J. - Plaintiffs are the Appellants in this appeal under Order 43, Rule 1 (u) against an order of remand of the ?suit by the appellate Court in exercise of the powers under Order 41, Rule 23-A, Civil Procedure Code 2. In two recent decisions of this Court reported in Rushi @ Rushi Behera and Anr. v. Madan Behera and Anr. 61 (1986) C.L T. 30 and in Nishi Swain and Ors. v. Bikala Charan Swain 62 (1986) C.L.T. 68, I have held that the appellate Court is required to assess the evidence and make endeavour to answer the issues. In case there would be difficulty in doing justice by answering the issues or new issues arise which require more evidence, it may consider to exercise the power under Order 41, Rule 25, C. P. C: first: and where it would be satisfied that Order 41. Rule 25, C.P. C. would not solve the problem, it may exercise the power of remand under Order 41, Rule 23-A, Civil Procedure Code,In the present case, the appellate Court has not considered the appeal in that light. 3. The appellate Court has set aside the decree and remanded the matter on two grounds: The first ground is to depute another survey knowing Commissioner. In the suit based on title, Plaintiff became successful in the trial Court and the Defendants preferred appeal Amin, Commissioner was deputed under Order 26, Rule 10, Civil Procedure Code. The Commissioner in his report stated that three, out of the four disputed plots were covered by plot No. 1437. Plot No. 502 was not mentioned to be part plot No. 1437. The appellate Court considered the report of the Commissioner and his evidence as p.w. 1 and came to the conclusion that his evidence brought ambiguity with regard to old plot No. 502 which is not true according to plot No. 1437. The appellate Court observed: .... Although the said plot is claimed to have been purchased by the pia in tiffs and at the same time, the sale certificate (Ext. H) shows that the said plot was acquired by Defendant No. I, in order to clear this ambiguity, it is necessary to depute a survey knowing commissioner so as to identify the current settlement plot No. 1437 with an area of 69 cents with its corresponding old plot numbers. H) shows that the said plot was acquired by Defendant No. I, in order to clear this ambiguity, it is necessary to depute a survey knowing commissioner so as to identify the current settlement plot No. 1437 with an area of 69 cents with its corresponding old plot numbers. Obviously, none of the parties had paid any attention to this ambiguity, nor the learned Court below. When both the parties were satisfied with the evidence the effect of the ambiguity in the commissioner?s report and evidence could have been considered by the appellate Court itself. In case with such ambiguity he would not be able to decide the dispute between the parties judiciously then only the question of deputing another commissioner would arise. When parties did not prefer to challenge the report and no case is made out that due opportunity was not available to them, the appellate Court is not required to give direction for deputing a commissioner. 4. The second ground on which the appellate Court considered the matter to be remitted back is on the following observation: ....1 am afraid, law will not permit a purchaser of mortgaged property to remain silent and claim title over the same after a mortgage decree is obtained and, in execution of the decree, the property is sold in auction and purchased by a third party. This aspect of the case, as already referred to above, has not been thoroughly examined and needs examination with reference to the provisions of the Transfer of Property Act. This question could have been answered by the appellate Court itself and for this purpose; the suit is not required to be remitted back after setting aside the decree. 5. It is brought to my notice that in the trial Court a copy of the sale, certificate was filed but the same could not be admitted to evidence as the required conditions were not satisfied. In appellate Court the original was filed to be admitted as additional evidence. If the genuineness of such a document was under challenge, an issue to that effect could have been settled and the appellate Court could have exercised the power under Order 41, Rule 25, CPC There was no necessity for exercising the power under Order 41, Rule 23-A, C. P. C. 6. The power under Order 41, Rule 23-A, CPC is wide in its language. The power under Order 41, Rule 23-A, CPC is wide in its language. Wider the power, greater should be the restraint. It should be sparingly used since the public policy is that a litigation is to be concluded as early as possible keeping in mind that technicalities which are not fatal in nature should give way to justice. Therefore, the appellate Court should pave first considered whether it would have been sufficient for framing an issue under Order 41, Rule 25, CPC arid call for the finding keeping the appeal pending with it. That has not been done in this case. 7. A recent decision reported in Puni Bewa and Ors. v. Bijaya Kumar Mohapatra and another has been cited by Mr. S.D. Das, the learned Counsel for the Respondent where in Second Appeal I exercised the power under Order 41, Rule 23-A, C. P.C. and remitted the matter back to the trial Court after setting aside the decrees of both the Courts. The said decision was rendered on the finding that the party did not get adequate legal advice to examine the natural father in a case of adoption or to explain the circumstances under which he could not be examined. As such a question, would go to the root of the dispute and is also a pun question of fact, because the question was not raised either in the suit or in the first appeal. I thought if advisable in the interest of justice to set aside the decree of both the Courts and remanded the matter to the trial Court in view of the limited scope of interference in Second Appeal. The facts and circumstances in the present case are completely different and the principle in the reported decision has no application to this case. 8. In the result, the appeal in allowed. The costs shall abide the result of the First Appeal. Final Result : Allowed