R.K.Choudhary, J.

1. This application is by the plaintiffs and is directed against an order of remand passed by the learned Additional Subordinate Judge of Monghyr on 6-10-1955, in Title Appeal No. 39 of 1955.

2. The events leading to the presentation of the application are these: The petitioners instituted a suit for confirmation of possession, and, in the alternative, for recovery of possession after declaration of their title to the suit land. They also prayed for an adjudication that the defendant was not an under-raiyat in respect of the suit land. It appears that on the date fixed for the hearing of the suit, the defendant was present with his lawyer in court, but the petitioners did not turn up and the suit was dismissed for default on 15-3-1955.

On the same date, the petitioners filed an application for setting aside the order of dismissal, and the learned Munsif, without registering the application as a miscellaneous case, and without giving any notice to the defendant, recalled the order of dismissal then and there, and proceeded to hear the suit. Two formal witnesses were examined and cross-examined on that date, though the defendant with his witnesses had left t