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Heard Shri Sudeep Seth, learned counsel for the appellant, Shri Deepanshu Das, learned counsel for the respondents and perused the record.

The controversy involved in the present case relates to House No.342/110 situated in Mohalla-Naubasta, Triveniganj, Near Old Ward Saadatganj, District-Lucknow, boundaries of the same are as under :-

East-Open Place, West-Government Road, North, Government Road and West-House of Shri S. N. Srivastava.
Plaintiff/appellant filed a Regular Suit No.21 of 2002 "Kuldeep Saxena vs. Raj Bahadur Saxena and others" in the Court of Civil Judge (Junior Division), South, Lucknow seeking for permanent injunction to restrain the defendants/respondents from interfering in the peaceful possession of the plaintiff/appellant and not to sell the house in question.

Shri Sudeep Seth and Shri Deepanshu Das, learned counsel appearing for the parties had requested the Court that the present appeal may be considered/heard on the substantial question of law framed on 17.07.2017 first. Further the said substantial question of law is involved in number of appeals which are pending before this Court, so a request has been made by the member of the Bar that they may also be allowed to argue on the point in issue.

As such, Shri Mohd. Arif Khan, learned Senior Advocate, Shri A. S. Chaudhary, Shri R. S. Pandey, G. C. Sinha, Shri U. S. Sahai and Shri Hari Om Singh, learned counsel have been permitted to assist the Court.

Shri Sudeep Seth, learned counsel for the appellant submits that it is mandatory on the part of appellate court to frame the point of determination under Order 41 Rule 31 CPC which is procedural law and the same is to be followed because Sub-section 16 of Section 2 of Code of Civil Procedure provides as under :-

"Prescribed" means prescribed by rules."

In order to elaborate his argument, he submits that Section 96 CPC provides that while hearing the appeal, First Appellate Court has the power as provided under Section 107 C.P.C., which reads as under :- (1) Subject to such condition and limitations as may be prescribed, an Appellate Court shall have power -

So the position which emerges out is that the condition as mentioned in Order 41 Rule 31 C.P.C. is mandatory in nature because Legislature has used word "shall" in the said order, so it is mandatory on the part of the Appellate Court to comply with the said provisions.

In support of his arguments, Shri Sudeep Seth, learned counsel for the appellant has placed reliance on the following judgments :-

" 1. Thakur Sukhpal Singh vs. Thakur Kalyan Singh AIR 1963 Supreme Court 146
2. Girijanandini vs. Bijendra Narain AIR 1967 SCC 1124