- (1.) The applt Jahangir Khan filed a suit in the Ct of City Munsif, Udaipur, against Karamdat Khan and the State Council Udaipur for an injunction restraining the defts from dispossessing the pltf from a house situated near Surajpol in the town of Udaipur. During the pendency of the suit Karamdat Khan executed a sale deed in favour of Mohan Lal resp and he died thereafter. The pltf Jahangir Khan alleging that there was no other legal representative of the deceased excepting his ownself got the name of Karamdat Khan struck off from the records without any substitute. On 6 -12 -1947, Mohan Lal filed an appln under Order 22 Rule 10, C. P. C, for the substitution of his name in place of that of Karamdat Khan on the ground that the property in dispute had been assigned to him by Karamdat Khan. The learned Munsiff however on the same day rejected the appln on the ground that Mohan Lal was not the heir of Karamdat Khan and his name could not be substituted in place of that of the deceased against the will of Jahangir Khan and that if he wanted to assert his claim he could institute a separate suit. Mohan Lal did not file any appln against this order. Ultimately on 23 -12 -1947 the suit was decreed.
(2.) THE State Council went in appeal against this judgment and decree of the learned Munsiff to the Ct of learned Dist J., Udaipur. This appeal is dated 13 -2 -1948. Mohan Lal also filed an appeal on the 2 -3 -1948 and along with it presented an appln under Order 22 Rule 10, C. P. C, that he might be brought on the record in place of Karamdat Khan. Jahangir Khan was asked to show cause against this appln of Mohan Lal. After hearing the objections of Jahangir Khan the learned Dist J. made Mohan Lal a party to the appeal under Order 22 Rule 10 vide his order dated 4 -5 -1948. Against this order Jahangir Khan did not file any appeal. The learned Dist J. heard both the appeals and by a single judgment dated 29 -9 -1948 set aside the decree of the first Ct and remanded the suit for completion of the deft's evidence and for disposal. The pltf Jahangir Khan had come in appeal against this appellate order of the learned Dist J. and has made the Govt of the United State of Rajasthan and Mohan Lal resps therein. Hereinafter in this judgment Jahangir Khan will be referred to as the applt the Govt of the United State of Rajasthan as the resp 1 and Mohan Lal the resp 2.
(3.) A preliminary objection has been taken on behalf of both the resps that the order of the learned Dist' J. is not open to any appeal. It has been argued that the only order of remand which is appealable is an order under Order 41 Rule 23, C. P. C. The order under appeal is not an order under Order 41 Rule 23, C. P C. and therefore no appeal lay against it. On behalf of the applt it has been argued that the order of the learned Dist J. does come under Order 41 Rule 23, C. P. C.;