LAXMAN NINGU VAIRAT Vs. KRISHNABAI

JUDGEMENT

(1.) THE appellant was the second defendant in. the trial Court which is a suit for redemption of a mortgage. THE trial Court decreed the suit and passed a preliminary decree for redemption. Against the said decree, 1st defendant preferred an appeal to the Court of the District Judge, Belgaum which was transferred to the Court of the additional Civil Judge, Belgaum. THE appeal was posted for hearing on 23rd June 1969. On that day the appellant and his Counsel were absent. THErefore, the appeal was dismissed for non-prosecution. A decree was passed following th,e dismissal of the appeal. Against the said decree, the 1st defendant has preferred the above second appeal.

(2.) WHERE an appeal is dismissed under rule 11 sub-rule (2) or rule 17 or rule 18, the appellant has a right to apply to the appellate court for re-admission of the appeal under sub-rule (1) of R. 19 of Order XLI CPC. WHERE it is proved tha,t the appellant was prevented by any sufficient cause from appealing when the appeal was called on for heading, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. Therefore, the remedy of the appellant was to make an application under rule 19 of Order XLI of the Code. A decree passed on dismissal of an appeal for default is not a decree within the meaning of the definition of a 'decree' contained in the Code. Therefore, this appeal is not maintainable Accordingly, it is dismissed with costs.