NAPOLEON Vs. P V CHERIAN

JUDGEMENT

(1.) This review petition was filed by the 4th appellant in A.S. 157/01. Appeal was dismissed at the admission stage by another Division Bench since the appellants failed to comply with an order dated 20.3.2001 as a precondition for admitting the appeal. Order reads as follows:

(2.) When appeal later came up for admission again, learned counsel for the appellants submitted that a failure to comply with an order under O. XLI R.1(3) of the Code of Civil Procedure would not entail a dismissal of the appeal, since the compliance with that provision was not mandatory. Submission made by learned counsel was not accepted by the Division Bench. Division Bench held as follows:

(3.) This review petition has been preferred by the 4th appellant. Appellants 1 to 4 are respondents 6 to 8 in the review petition. Learned counsel appearing for the review petitioner brought to our notice a decision of the apex court in Kavamuddin Shamsuddin Khan v. State Bank of India, 1998 (8) SCC 676 and a decision of the Division Bench of this Court in Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd., 1989 (1) KLT 386 and contended that this Court has committed an error in dismissing the appeal for default for non compliance of the requirement of O. XLI R.1(3). Counsel also made reference to a decision of the Andhra Pradesh High Court in State of Andhra Pradesh and Another v. Mahmud Hassan Khan Maharaj Kumar of Mahamoodabad, AIR 1983 A.P. 277 and also another decision of a learned single Judge of Andhra Pradesh High Court in J.Lakshmikantham v. Ubbala Rajamma and Ors., AIR 1982 A.P. 337. Reference was also made to the decision of the Bombay High Court in Prabhakar v. Vinayakrao, AIR 1983 Bom. 301 and also a decision of the Delhi High Court in Union of India and Another v. Jagan Nath Redhey Shyam and Co. and Anr., AIR 1979 Delhi 36.