SHAIKH MOINUDIN Vs. BURANSAB

JUDGEMENT

(1.) AT the request of both the Counsel, the matter is taken up for final consideration.

(2.) BEING aggrieved by the judgment and decree dated 10. 1. 2002 passed in O. S. No. 91/1988 on the file of the Civil Judge (Jr. Dn.), Chincholi, the petitioners preferred an appeal before the Civil Judge (Sr. Dn) Gulbarga in R. A. No. 7 of 2006. The said appeal was dismissed for non-prosecution. Respondents filed Miscellaneous No. 13 of 2007 under Order 41, Rule 19 for restoration of the appeal and the same came to be dismissed. Aggrieved by the same, respondents filed an appeal under Order 43, Rule 1 of CPC in M. A. No. 4 of 2008. The Appellate Court came to the conclusion that when ever orders are passed under Order 41, Rule 19, the remedy available to the party is before the Appellate Court and the Appellate Court in the instant case is the District Court and the said application is therefore not maintainable under law.

(3.) SMT. Hema L. Kulkarni, learned Counsel appearing for the petitioner contends that the impugned order is bad in law and liable to be dismissed. By placing reliance on the provisions of Order 41, Rule 19 she submits that the remedy is before the High Court and not the Appellate court as is done in the instant case.