G AROCKIASAMY Vs. C MARIARAJ

JUDGEMENT

(1.) THE petitioner is plaintiff in O.S.No.344 of 2004, on the file of the District Munsif, Nilakottai, which is a suit on mortgage. Preliminary Decree was passed on 22.03.2006 and the petitioner filed an application to pass a final decree in I.A.No.258 of 2006 under Order 34 Rule 5(3) and Section 151 of the Civil Procedure Code.

(2.) ON 13.09.2006, the learned counsel for the petitioner endorsed on the petition that he did not press the petition and hence the Court dismissed the petition as withdrawn. Subsequently, the petitioner filed another application in I.A.No.403 of 2006 for passing of final decree under the above said provision. But the trial Court had dismissed the application by observing that since a similar petition was filed by the petitioner, not pressed by him and the same was dismissed by the Court as withdrawn, an identical petition for the same relief viz. to hypothetic is not maintainable. The said order is challenged before this Court.

(3.) IT is well settled law that if an interlocutory application has been dismissed for non prosecution or dismissed as withdrawn when no merits have been discussed thereon, a subsequent petition for the same relief is not at all barred by law and no question of res judicata will arise.