VISHWANATH Vs. BHASKAR

JUDGEMENT

(1.) Heard finally with the consent of the learned counsel for the parties.

(2.) This appeal claims an exception to the judgment and order in M.C.A. No. 21 of 2016, dtd. 25/4/2017, passed by the District Judge - 2, Udgir, District Latur, whereby, the Court has declined to restore appeal in terms of order 41 Rule 19 of the Code of Civil Procedure, 1908 (for short "C.P.C.").

(3.) The facts in brief are that, initially the respondent Bhaskar has filed R.C.S. No. 42 of 2008, for removal of encroachment and for possession. On full fledged trial, the suit was decreed on 29/11/2011 directing the present appellants to hand over the possession of the encroached area, ad-measuring 71R, within two months from the order. Being aggrieved by the said possession decree, the appellants (Original defendants) have filed R.C,.A. No. 39 of 2011. The Court has kept said appeal for hearing on 27/4/2016, however, none appeared. The District Judge, on the same date by passing an order on Exh. 1 has dismissed the appeal for want of prosecution, in terms of order 41 Rule 11 of C.P.C. In turn, the appellants have filed an application for restoration of appeal as provided under Order 41 Rule 19 of the C.P.C. The said application came to be rejected vide order dtd. 25/4/2017, which is impugned herein.