ROSEMARY SALDANHA Vs. K N GIRIJA ALIAS JAYA

JUDGEMENT

(1.) Heard the learned counsels for the petitioners and the learned counsel for the respondents.

(2.) Petitioners are before this court being aggrieved by the order dated 07.12016 passed by the learned Second Additional District and Sessions Judge, Kodagu, Madikere, sitting at Virajpet in Miscellaneous appeal bearing MA No.10/2016 whereby, the appellate court was pleased to allow the appeal with cost of Rs.25,000/- and was further pleased to set aside the order passed by the trial court on IA No.IX on 13.04.2016 in O.S. NO. 82/200

(3.) Learned counsel for the petitioners would contend that the appeal in MA 10/2016 itself was not maintainable. He would contend that the application IA NO.IX was preferred invoking the provisions of Section 94(c) of CPC read with Section 151 and that the order passed under Section 94(c) is only a revisable order and it is not an appealable order. He would also place reliance on the ruling rendered by Calcutta High Court in the case of "Rathindra Nath Bose Vs. Jyoti Bikash Ghosh and Others, (1975) AIR Calcutta 377". He would further contend that the conclusion arrived at by the appellate court is not based on any legal grounds and that the appellate court on an erroneous appreciation of the provisions of Section 94 has been pleased to hold that the invoking of the provisions of Section 94 in the light of the availability of similar relief under the provisions of Order 39 Rule 1 and 2 of CPC is not maintainable and hence, it was pleased to deem it necessary to set aside the order passed by the trial court on IA No.IX.