- (1.) The present appeal has been filed by the appellants-plaintiffs under Order XLIII Rule 1(u) of CPC challenging the common order dated 2.5.05 passed by the District Judge, Sawai Madhopur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal Nos. 26/96 and 29/96, whereby the appellate court while allowing the said appeals has set aside the judgment and decree dated 22.5.96 passed by the Civil Judge (SD), Sawai Madhopur (hereinafter referred to as 'the trial court') in Civil Suit No. 46/92.
(2.) The short facts giving rise to the present appeal are that the appellants-plaintiffs had filed the suit originally against the respondent No.1 Municipal Board in respect of the suit plots. In the said suit after the pleadings were completed by the parties issues were framed by the trial court and thereafter the present respondent Nos. 2 and 3 filed an application under Order I Rule 10 for impleading them as party-defendants in the suit. The said application was allowed by the trial court vide order dated 27.4.93 and permitted them to be the party-defendants Nos. 2 and 3. It appears that thereafter the appellants-plaintiffs submitted an application under Order XII Rule 6 of CPC, relying upon the statements made by the defendant-Board in the written statement and requested the court to decree the suit. Since the said application was not resisted by the defendants-Board, the trial court decreed the suit of the appellants-plaintiffs vide the judgment and decree dated 22.5.96 restraining all the three defendants from causing any obstruction to the plaintiffs in the possession of the suit property and further set aside the sale made by the defendant No.1 on 21.10.83 and 22.10.83 in respect of the suit plots. Being aggrieved by the said judgment and decree, the defendant No.1 Municipal Board had filed the appeal being No. 29/96 and the defendant Nos. 2 and 3 had filed the appeal being No. 26/96 before the appellate court. The appellate court vide the common judgment and order set aside the decree passed by the trial court and remanded the case to the trial court for deciding the same afresh after hearing all the necessary parties in the suit. Being aggrieved by the said order, the present appeal has been filed.
(3.) It has been sought to be submitted by the learned senior counsel for the appellants that the order passed by the appellate court does not fall within the purview of Order XLI Rule 23 or Rule 23A of CPC and that the appellate court has directed the trial court to hear all the necessary parties, though no such plea was raised before the trial court by any of the parties. He also submitted that the order passed by the appellate court is vague and ambiguous so far as giving of opportunity of hearing to be given to the necessary parties, was concerned.;