JUDGMENT : S.C. Mohapatra, J. - Defendant Nos. 2 and 3 and the legal representatives of Defendant No.1 are the appellants in this second appeal against a confirming judgment. 2. Case of the Plaintiff is that after getting delivery of possession through Court in .Execution Case No. 46 of 1970 on 10-4-1914 from the defendants who were judgment-debtors, he was dispossessed by them for which the suit for title and recovery of possession with consequential prayer for permanent injunction against them was filed. Defendants challenged delivery of possession in the Execution Case and claimed to be' continuing in possession from the time of their ancestors resulting in their adverse possession. The suit was decreed and in appeal the same has been confirmed. The substantial questions of law formulated by this Court as required u/s 100, CPC are as follows:, (a) Whether non-consideration of the plea of the defendants-appellants that they were prevented by sufficient cause from not appearing on 17-7-1979 vitiates the judgments of the Courts below ? (b) Whether the description of the suit land in violation of the direction given in Order VII, Rule 3 is sufficient to disentitle the Plaintiff-Respondent from getting the relief claimed or not ? 4. Mr. Mohanty, the learned Counsel for the Appellants, submitted that on 17-7-1979 when the Defendants were to adduce evidence, they were prevented by sufficient cause from adducing evidence and this grievance of the Appellants though taken note of by the first appellate Court has not been considered. He submitted that the order closing the case and fixing date for argument is not appealable. Section 105 and Order 43, Rule 14, CPC provide that the correctness of the order can be questioned in the appeal against the decree: They read as follows: 105 Other orders.- (l) Save as otherwise expressed provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in Sub-section (1) where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness:' "O. 43, Rule 1-A -Right to challenge non-appeal able orders in appeal against decree. (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should .not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the Appellant to contest the decree on the ground that the compromise should or should not, have been recorded. Accordingly, the Appellants have a right to assail the order before the first appellate Court. 5. Relying on the principle laid down in Mst. Kunjalata Purohit v. Tahasildar, Sambalpur and Ors. 1985 (I) O.L.R. 592 , Mr. Mohanty, submitted that a Court is not to ignore a plea merely on the ground that the same has no force. When a plea is raised, the Court is to decide the same. 6. This Court in Mst. Kunjalata Purohit's casel, (supra) relied on the English decision reported in Ridge v. Baldwin L. R. 1964 A. C. 40, where it has been observed; ..... Even if as a general rule a watch committee must hear a constable in his own defence before dismissing him. This, case was so clear that nothing that the Appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse...... This principle has no application to the facts and circumstances, of this case since the appellate Court has heard the Appellants on the grievance. However, I have no doubt in my mind that the correctness of the order of the trial Court dated 17-7-1979 should have been specifically dealt with in view of the tight vested in the Appellants u/s 105, CPC and Order 43, Rule l,-A Code of CPC The appellate Court, therefore, exercised jurisdiction with material irregularity. 7. Mr. However, I have no doubt in my mind that the correctness of the order of the trial Court dated 17-7-1979 should have been specifically dealt with in view of the tight vested in the Appellants u/s 105, CPC and Order 43, Rule l,-A Code of CPC The appellate Court, therefore, exercised jurisdiction with material irregularity. 7. Mr. Mohanty submitted that the appellate decree is to be set aside and the appellate Court should be directed to consider the correctness of the order dated 17-7-l979 to examine if relief is to be granted. I am, however, not satisfied that there should be a remand unless the matter comes within the scope of the provisions of Order 41, Rules 23, 23-A and 25, C. P.C., which are exhaustive. They read as follows: 23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon preliminary point and decree is reversed in appeal, the Appellate Court may if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions; be evidence during the trial after remand. 23-A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than an a preliminary paint, 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. 25. Where Appellate Court may frame issues and refer them for trial to the Court whose decree appealed from. 25. Where Appellate Court may frame issues and refer them for trial to the Court whose decree appealed from. Where the Court from whose decree, the appeal is preferred has admitted 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 far 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 thereof within such time as may be fixed by the Appellate Court or extended by it from time to time. 8. The first appeal was not decided an any preliminary issue Rule 23 has, thus, no application. Since all the materials are available an record, this Court is competent to decide the question on the materials available and therefore, there is no necessity to direct the first appellate Court to take additional evidence required and return the finding as required under Rule 25. No prayer has been made under Order 41, Rule 27, CPC either in the first appellate Court or even in this Court to consider any additional evidence: Accordingly, the Appellants being satisfied that no further material would be necessary, I am not inclined to exercise the power of remand, under Rule 23-A specially when I can consider the question myself' to conclude the grievance of the Appellants. 9. The question is about the justification of the trial Court in not granting time to the Defendants to summon the witnesses. Expeditious disposal of a litigation is a public policy and keeping the same in view CPC has also been amended in the year 1976. The stage for giving opportunity to a party for summoning his witnesses which is the principle of natural justice has been indicated in the CPC Code. Once that principle is not availed of by a party, although he indicates to the Court that he is ready to contest the litigation it cannot be said that the Court would be unreasonable in rejecting the prayer for summoning the witnesses. Once that principle is not availed of by a party, although he indicates to the Court that he is ready to contest the litigation it cannot be said that the Court would be unreasonable in rejecting the prayer for summoning the witnesses. Where, however, reasons are given for not having taken steps earlier, the trial Court is required to consider same' judicially for summoning the witnesses giving opportunity to the party for adducing evidence. After all these,are all procedures which are handmaid of justice. Technicalities should not stand on the way for obstructing the free flow of justice where the Court is satisfied that there was sufficient cause for the party applying for not taking steps in time. That is why in Order 18, CPC provision has been made empowering the Court to summon the witnesses and accept the evidence which would be necessary for proper adjudication of the lis. Not only that, Order. 41, Rule 27, CPC provides for the appellate Court to exercise the discretion with that end in view. 10. In this case after the adjournment was refused and the case was closed fixing the date of argument, Appellants did not seek opportunity in the trial Court. In the first appellate Court unjustifiably of the order refusing to give chance was only raised without prayer for giving a chance to adduce additional evidence as provided under Order 41, Rule 27, Civil Procedure Code. In this Court also no such petition has been filed indicating the nature of evidence the Appellants would have adduced. In such circumstances, the principle laid down in Ridge v. Baldwinl (supra) which has been accepted in Mst. Kunjalata Purohit V. v. Tahasilda Sambalpur and Ors. (supra) is not attracted at all. 11. Although I am to deal with a substantial question of law. I cannot ignore a matter where grave injustice would be caused to a party. Therefore, I called upon Mr. Mohanty to satisfy me even at this stage about the nature of evidence to be led if opportunity is given to him. He submitted that he would be able to prove in the Court that despite the execution case and delivery of possession the Defendants were continuing in possession from the time of their ancestors. Assuming that such evidence would be accepted let me examine whether the Defendants would get any right by such continuous possession. Mr. He submitted that he would be able to prove in the Court that despite the execution case and delivery of possession the Defendants were continuing in possession from the time of their ancestors. Assuming that such evidence would be accepted let me examine whether the Defendants would get any right by such continuous possession. Mr. Mohanty relied upon a decision of this Court reported in Rama Subudhi and Others Vs. Bhagirathi and Others. wherein it has been indicated that under Order 21, Rule 35, CPC actual, possession is to be delivered in a case where a judgment-debtor is in possession of the property. Symbolical delivery of possession would be permissible only in cases where the third parties are in possession of the property.. It was held therein that symbolical delivery of possession would only be a paper transaction. In this background even 'if it is assumed that there is a paper transaction, there is a decree passed on 6-9-1966 where the title of the Plaintiff being declared, decree for recovery of possession has been granted. Execution case has been filed for such recovery of possession.. The previous possession prior to the decree cannot be tacked to the possession after the decree during continuance of the execution proceeding. Even if the delivery of possession is a paper transaction, the suit has been filed on 8-1-1978. within 12 years of the earlier decree. Thus, continuance of possession by the Defendants would not be a ground to defeat the suit of the Plaintiff. 12. In this case, however, I have held that the trial Court was not justified-in refusing adjournment. Accordingly, the finding that delivery of possession was given to the Plaintiff is a finding of fact based on evidence which is not to be interfered with in this second appeal. 13. As regards the second question of law it is academic since both the parties understood the land in dispute and continued the suit on that basis. 14. In the result, the second appeal has no merit which is, accordingly, dismissed. In the peculiar circumstances of this case. parties shall bear their own costs throughout. Final Result : Dismissed