and void and not binding upon the petitioners, as the same was obtained by playing fraud upon the learned trial court and against the petitioners. In the said title suit, the respondent herein filed written statement and at the stage of step before preliminary hearing the respondent had filed an application under Order 14 Rule 2 sub-Clause 2 of C.P.C. for framing a preliminary issue to the effect that whether the suit is barred by principle of res-judicata or not. Thereafter, the petitioners have filed objection, but the learned trial court vide impugned order dated 03.02.2023, has allowed the petition and framed the preliminary issue and fixed the suit for hearing on that issue. Mr. Sahu further submits that the learned trial court had committed manifest illegality, in allowing the petition as the suit was filed for declaration of decree to be null and void and not binding upon the petitioners, which was obtained in Title Suit No. 35/1996, by playing fraud upon the learned trial court as well as the petitioners. Mr. Sahu also submits that the contention of the respondent in the Petition No. 321/2023 is that the suit is barred by the principle of res-judicata under Section 11 of the C.P.C. as the issue has already been decided in the Title Suit No. 35/1996 and according to Mr. Sahu the issue of res-judicata is a mixed question of law and fact and as such, the Title Suit No. 143/2017 cannot be decided by framing a preliminary issue. On such count, Mr. Sahu has submitted that the impugned order is illegal and arbitrary and therefore, it is contended to set it aside.
