JUDGMENT
P.K. Misra, J.
1. Defendants have filed this appeal against the judgment dated 17.6.1996 whereunder the lower appellate Court has set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for fresh disposal.
2. There is no dispute that defendant No. 1 was the owner of the disputed land. Originally, the suit was filed for specific performance of contract against defendant No. 1. It appears that the said suit was decreed ex pane on 19.12.1979 and subsequently, a sale deed was executed in execution through Court. On 2.1.1982, defendant No. 1 executed three sale deeds in favour of defendants 2 to 4. Subsequently, defendant No. 1 filed Misc. Case No. 327 of 1982 under Order 9, Rule 13, Code of Civil Procedure, to set aside the ex pane decree and the ex pane decree was set aside. Thereafter, defendants 2 to 4 got themselves impleaded in the suit. The plaintiff also amended his plaint and prayed that the sale deeds in favour of defendants 2 to 4 are illegal and inoperative. According to the plaintiff’s case, defendant No. 1 had executed an agreement on 29.3.1976 to sell the disputed land to the plaintiff and out of the total consideration of Rs. 10,000/- a sum of Rs. 8,000/- had been paid and written agreement had been executed and possession had been delivered. Thereafter, though the plaintiff had verbally requested defendant No. 1 to execute the sale deed, the latter avoided to do so.
3. Defendant No. 1 in his written statement denied the plaint averments relating to execution of agreement and receipt of part of the consideration money and regarding delivery of possession of the disputed land to the plaintiff. It was pleaded that the disputed property had been acquired jointly along with one Lokanath Mohanty and subsequently in an amicable partition, the disputed land fell to the share of defendant No. 1. In 1975, one Shiva Parida who had purchased a piece of land from Lokanath Mohanty from the very same plot, approached defendant No. 1 for purchasing the disputed land, but defendant No. 1 did not agree. It is further claimed that the aforesaid Shiva Parida might have created a forged document with a view to grab the disputed property. It was further pleaded that defendant No. 1 had executed three sale deeds in favour of defendants 2 to 4 on receipt of consideration money from them and possession had been delivered to them. On 18.3.1982, defendant No. 1 was informed by defendant No. 2 that the plaintiff had created trouble at the time when defendant No. 2 was demarcating the purchased land on the basis of a sale deed executed in favour of plaintiff through Court pursuant to an ex parte decree passed in O.S.No. 32 of 1979. Thereafter, defendant No. 1 filed an application under Order 9, Rule 13, Code of Civil Procedure, to set aside the ex parte decree and the said application was allowed by the trial Court and the ex parte decree was set aside.
Defendants 2 to 4 in a separate joint written statement pleaded that they had purchased the disputed land from defendant No. 1 on payment of consideration in good faith without any prior knowledge of the alleged contract between the plaintiff and defendant No. 1 and being bona fide purchasers for value without notice, their sale deeds are valid.
4. The trial Court dismissed the suit. In appeal at the instance of the plaintiff, the Additional District Judge set aside the judgment of the trial Court, framed two additional issues and remanded the matter to the trial Court for fresh disposal on the basis of the existing evidence on record. The aforesaid order of remand is under challenge in the present Miscellaneous Appeal.
5. The learned counsel for the appellants has contended that the order of remand was wholly unnecessary and unjustified. It has been submitted that the two additional issues framed by the lower appellate Court were not necessary and, at any rate, since the lower appellate Court directed the trial Court to dispose of the suit on the basis of existing evidence on record, there was no necessity to remand the matter, as the lower appellate Court should have disposed of the matter including the additional issues itself on the basis of the evidence on record.
6. Section 107, CPC prescribes the powers of the appellate Court. Section 107(1) which is relevant for the present purpose is extracted hereunder:
“107. Powers of Appellate Court –
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial:
(d) to take additional evidence or to require such evidence to be taken.”
Order 41, CPC contemplates the circumstances under which the appellate Court may remand the case to the trial Court. Order 41, Rule 23 contemplates remand to a case by appellate Court where the trial Court has disposed of the suit upon a preliminary point and the decree is reversed in appeal. Order 41, Rule 25 contemplates a situation where the appellate Court while retaining the appeal, frames additional issues and refers such issues for trial to the trial Court and after such issues are determined by the trial Court by taking fresh evidence, the appellate Court proceeds to decide the appeal. Evidently, in the present case, neither Order 41, Rule 23, nor Order 41, Rule 25 had any application. It is apparent that the appellate Court in the present case has followed the provisions contained in Order 41, Rule 23-A which had been introduced by Act 104 of 1976. For convenience, the provision under Order 41, Rule 23-A, CPC is extracted hereunder:
“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.”
In the present case, though the appellate Court has reversed the judgment and remitted the matter to the trial Court after framing two new issues, it has specifically observed that the entire matter including the new issues must be decided on the evidence already on record and no further evidence is to be adduced by the parties. A perusal of Order 41, Rule 23-A. CPC indicates that an order of remand under this provision is contemplated if the appellate Court considers it necessary that a re-trial should be ordered. In the present case, the appellate Court has nowhere considered as to whether a re-trial is necessary. On the other hand, the appellate Court has specifically observed that the matter is to be disposed of by the trial Court on the basis of existing evidence. In this context, the provision of Order 41, Rule 24, C.P.C. is also significant. Order 41, Rule 24, CPC provides:
“24. Where evidence on record sufficient Appellate Court may determine case finally-
Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the appellate Court may, after re-settling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.”
From the aforesaid provision, it is apparent that where the evidence on record is sufficient to enable the appellate Court to dispose of the matter, the appellate Court is to finally determine the suit after re-settling the issues, if necessary. In the present case, the appellate Court has not considered the necessity of adducing any fresh evidence. In other words, the appellate Court was convinced that the evidence on record was sufficient for disposal of the suit even in respect of the two new issues framed by it. Since the appellate Court has not considered that re-trial was necessary and was apparently of the opinion that the evidence existing on record was sufficient to dispose of the suit, instead of remanding the matter to the trial Court, the appellate Court should have disposed of the appeal. It is not the intention of the Code of Civil Procedure to prolong a trial. If the matter goes back to the trial Court, the matter is likely to be further delayed by filing further appeal and second appeal, whereas if the appellate Court could have disposed of the matter on merit, the ultimate disposal of the case would have been expedited. It is apparent that the provision contained in Order 41, Rule 24, C.P.C. has been incorporated specifically with a view to meet such situation where re-trial is not necessary.
7. In course of hearing of this appeal, the defendant-appellants submitted that, in fact, the two issues framed by the appellate Court were absolutely unnecessary. There is no dispute that defendants 2 to 4 have purchased the disputed property from defendant No. 1 after the institution of the suit in the year 1979. It is, of course, true that by the time defendants 2 to 4 purchased the disputed land in 1982, no suit was actually pending in the sense that the suit had already been decreed ex pane, but such a situation cannot improve the matter for defendants 2 to 4, as in any case they would have been bound by the decree which had already been passed. At any rate, when the ex parte decree was subsequently set aside in a proceeding under Order 9, Rule 13, CPC, it must be deemed that the lis was still pending at the time of alienation. The doctrine of lis pendense is not dependent upon the question as to whether the alienation has taken place after the service of notice in a pending suit, or not. The parties who purchase a property during the pendency of a suit do so at their own peril and are ultimately bound by the decision in the suit. Thus according to the learned counsel for the appellants framing of an issue on this aspect was totally unnecessary. Similarly, it has been contended that the issue relating to delivery of possession to defendants 2 to 4 was equally irrelevant as the question of passing of title was not dependent upon the question of possession being delivered to defendants 2 to 4. I accept such submission of the learned counsel for the defendants and hold that the two issues framed by the lower appellate Court were absolutely unnecessary.
8. For the aforesaid reasons, the judgment passed by the lower appellate Court is set aside and the lower appellate Court is directed to dispose of the appeal in accordance with law without being influenced by any observations made in the present judgment. Parties are directed to appear before the appellate Court on 15th October, 1998. The appeal is accordingly allowed. There is no order as to costs.