ULAHANNAN CHACKO Vs. MATHAI

JUDGEMENT

(1.) The Second Appeal arises from a suit for perpetual injunction restraining trespass. The suit was dismissed by the Trial Court and the decree was confirmed in appeal. The plaintiff - appellant appears to have filed an application for amendment of the plaint in the appellate court. When the appeal was dismissed for default that application also happened to be dismissed. Subsequently the appeal was restored to file and was disposed of on merits without adverting to the application for amendment The plaintiff - appellant has therefore raised before this court the following questions:

(2.) The learned counsel for the appellant, placing reliance on the decision in Shivaraya v. Sharnappa, AIR 1968 Mysore 283 and Rami Reddi v. Padma Reddy, AIR 1978 AP 30 contended that once the appeal was restored to file the interlocutory application also stood revived and the court below should have considered that application on merits while disposing of the appeal. The Mysore High Court, relying on the decision of the Madras High Court in Saranatha Ayyangar v. Muthiah Mooppanar, AIR 1934 M d. 49 held:

(3.) Even though the question that arose for consideration in these decisions was the effect of the interlocutory orders passed prior to the dismissal of the suit, the ratio of the decision will apply to a case where the question is whether consequential orders on dismissal of the suit would stand vacated on restoration of the suit. When restoration of the suit or appeal is allowed, the parties are to be restored to the same position in which they were situated when the court dismissed the suit or appeal. Then on restoring the appeal dismissed for default, the ancillary matters disposed of in consequence of such dismissal must also get restored and the consequential orders passed on dismissal of the suit or appeal should automatically get vacated.