1. Petitioners are plaintiff. They are aggrieved by an order dated 29.11.2010 passed by District Judge, Bhojpur at Ara in Miscellaneous Appeal No. 21/2009 whereby and whereunder the appellate court had allowed the Miscellaneous Appeal setting aside the order dated 14.09.2009 passed by 4th Additional Munsif, Bhojpur at Ara in Title Suit No. 12/2008.

2. In order to properly appreciate the submissions as well as legal grounds having been raised at the end of rival parties, the facts of the case is to be noticed first.

Petitioners/plaintiffs have asserted that they were selected and appointed as Panchayat Teachers relating to Gram Panchayat, Harpur, Anchal, Garhani, District, Bhojpur at Ara after exhausting all the necessary paraphernalia as prescribed under “Shikshak Niyukti Niyamavali, 2006” subsequently, became victimized at the end of local Mukhiya, Malti Devi who was more eager to appoint her Bhagini, Rita Kumari and in the aforesaid background, the aforesaid Malti Devi who forbade herself to participate during appointment process approached before Deputy Development Commissioner, Bhojpur at Ara who set aside the appointment of the petitioners/plaintiffs so communicated vide Letter No. 956/Confidential dated 13.09.2007 whereupon suit (Title Suit No. 12/2008) has been filed asking for relief to set aside the aforesaid order as being illegal, without jurisdiction, the defendant be restrained from interfering with the due discharge of duty by the plaintiffs, cost of suit, any other relief or reliefs.

3. Subsequently thereof, the petitioners/plaintiffs filed a petition for granting of ad interim injunction in their favour against the defendant asking for stay of execution as well as operation of order dated 13.09.2007 which was allowed vide order dated 21.02.2008 effective till submission of show-cause which, after filing of show-cause as well as hearing respective parties was vacated on 14.09.2009.

4. During intermediary period, on 01.07.2008, petitioners have prayed for directing the defendant/respondent to pay salary and the same was allowed vide order dated 14.09.2009 directing the defendant/respondent to pay within a month against which the defendant/respondent filed a Miscellaneous Appeal No. 21/2009 before learned District Judge, Bhojpur at Ara which has been allowed as indicated above, whereupon the instant petition has been filed.

5. It has been submitted on behalf of petitioners/plaintiffs that the learned appellate court should have considered that no appeal was maintainable against an order having been passed under Section 151 of the CPC. While exercising power under Section 151, the Court deals with the inherent jurisdiction and for that, no appeal has been provided. That being so, the appeal was not maintainable. Because of the fact that appeal was non maintainable, setting aside the order dated 14.09.2009 passed by the learned lower court under the guise of Section 151 of the CPC could not be accepted as a legal order on whatever ground whereupon, the order impugned is fit to be set aside.

6. To substantiate the aforesaid plea, learned counsel for the petitioners/plaintiffs relied upon AIR 1953 SC 23, AIR 1978 Patna 339, (2008) 12 SCC 331, (1999) 1 SCC 423 and (2004) 11 SCC 168.

7. At the end of defendant/respondent, it has been submitted that Misc. Appeal happens to be entertain able when an order having been passed during course of intermediary stage suggests its finality. It has further been submitted that while ad interim injunction was subsisting, the defendant/respondent appeared, filed their show-cause whereupon the propriety of the order was challenged in the background of suit being non maintainable and, the Court after perceiving the same withdrew the order. Therefore, there was no occasion for the learned lower court to pass the order impugned in the background of the fact that after vacating ad interim injunction petitioners/plaintiffs gone out of stream, on account thereof, rightly been set aside by