C. NANJUNDASWAMY Vs. NAGARAJAPPA

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree dated 13 -12 -2007 passed by the Civil Judge (Senior Division) and JMFC at Malavalli in UR.R.A. No. 18 of 2007 the petitioner is before this Court. The 4th respondent filed an appeal in R.A. No. 54 of 2002, it appears that the appeal was dismissed for non -prosecution. After lapse of couple of years, respondents 1 to 3 along with respondent 4 filed another appeal which was un -numbered. On notice, serious objections were taken by the petitioners to the effect that, when once appeal was dismissed for non -prosecution, the question of maintaining the second appeal on the same ground is not permissible. The learned Trial judge has rejected the said submission and has observed that the said fact can be considered along with the merits. The said order is questioned in this writ petition. Sri K.V. Narasimhan, learned Counsel appearing for the petitioners submits that having regard to the fact that the appeal filed by the 4th respondent having been dismissed for non -prosecution, the second appeal filed by respondents 1 to 3 along with respondent 4 is not maintainable.

(2.) LEARNED Counsel appearing for the respondents supports the impugned order. Indeed, the learned Trial Judge has observed that the question regarding maintainability of the appeal shall be heard along with merits. I laving regard to the fact that the said question regarding maintainability is kept open, I am of the view that the question of upsetting the said order does not arise. Consequently, the following: