A FAROOQ S/O LATE P. ABDULLA, KHADER S/O LATE P. ABDULLA AND ILLIYAZ S/O LT ABDULLA Vs. J. RAGHUPATHY SINCE DEAD BY LRS. (SMT. YASHODA, W/O LT RAGHUPATHI AND OTHERS)

JUDGEMENT

(1.) THIS second appeal is directed against the order dated 22.2.2010 in R.A.71/02 on the file of Addl. Civil Judge (Sr. Divn.), K.G.F., remanding O.S.40/95 on the file of Civil Judge (Jr. Divn.), K.G.F., for fresh trial. The appeal is posted for admission after notice to the other side.

(2.) HEARD , The appeal is admitted to consider the following substantial question of law: Could the power conferred on the appellate court by Rules 23 and 23(a) of Order XLI, Code of Civil Procedure be exercised without hearing the appeal on merits merely on the basis on the application filed by the Respondent?

(3.) LEARNED Counsel for the Appellant, with vehemence, questions the jurisdiction of the appellate court in remanding the matter without hearing the appeal on merit. Learned Counsel for the Respondent though initially supported the impugned order, left it to the court to be decided in the light of the provisions of Rule 25 of Order XLI, Code of Code of Civil Procedure