GUDDO GIRIDHAR KULKARNI Vs. IMAMSAB JAMMUSAB WALIKAR

JUDGEMENT

(1.) This appeal is by the appellant in MA.19/73 on the file of the Civil Judge at Haveri. He is aggrieved by an order made in Mis. Case 6/74, whereby his application for re-admission of the appeal was refused.

(2.) It has arisen in this way: The appellant filed an original suit for specific performance in the Court of the Munsiff at Ranebennur. In the course of the said suit, he had obtained an order of temporary injunction which later on came to be vacated. Aggrieved by the dissolution of the injunction, he preferred Misc.App.l9/73 before the Civil Judge at Haveri. When the said appeal was pending the original suit came to be dismissed for default. He had also applied for restoration of the suit pursuant to the provisions of Or.9 CPC. Before his suit could be recorded, the appeal came to be dismissed on the ground that it had become infructuous, aa no suit could be said to be pending on the day when the appeal was called on for hearing. Subsequently, the suit came to be restored by the learned Munsiff on 6-12-1973. In view of the said restoration, the appellant applied for re-admission or revival of the appeal (Misc. App.19/73) specifically referring to Or.41, R.19 read with S.151 CPC.

(3.) The learned Civil Judge came to the conclusion, in my opinion, rightly, that Rule 19 of Or.41 CPC was inapplicable to a case of this kind. He however, did not deal with the matter under the provisions of S.151, CPC, presumably because no argument seems to have been addressed before him on the basis of it. He further came to the conclusion that the said application for re-admission of the appeal had been filed beyond 30 days from the date of restoration of the suit by the learned Munsiff, and therefore was liable to be dismissed in the absence of any reasonable explanation furnished for the delay involved. Hence this appeal.