SASEENDRAN Vs. K.M. CHERIAN (DIED)

JUDGEMENT

(1.) Leave granted.

(2.) The impugned judgment is sought to be challenged on the sole ground that having found that the trial Court has not answered the issues of fact, the judgment and decree of the trial Court could not have been set aside by remanding it back for fresh consideration.

(3.) Learned senior counsel appearing for the appellant submitted that a perusal of the Order XLI Rules 23 and 33, Code of Civil Procedure would show that the First Appellate Court is duty bound to call for the findings from the trial Court in the event of its inability to decide an issue of fact and, in such circumstances, there is no need for setting aside the judgment and decree of the trial Court and remand it thereafter.