MADEPALLI MADHU Vs. GRADHI RAMU

JUDGEMENT

(1.) The matter is appearing under the caption "Interlocutory". Both the Counsel on record made elaborate submissions and a request also was made for final disposal of the civil miscellaneous appeal. Hence, this civil miscellaneous appeal is being disposed of finally.

(2.) Sri V.V.N. Narasimham, learned Counsel representing appellant would submit that the learned VIII Additional District Judge, East Godavari, Rajahmundry, had totally erred in dismissing the I.A. No.828 of 2006 in A.S. No. 177 of 2005 for the reason that the matter was posted for arguments and the Counsel representing the appellant argued for sometime and the matter was adjourned for further arguments and without giving further opportunity to make a reply as contemplated by Order XLI Rule 16(2) of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) the judgment was made, and hence, the said judgment cannot be said to be a judgment in the eye of law, and hence, the same to be treated as though the appeal was dismissed for default, and hence, the application filed under Order XLI Rule 19 red with Section 151 of the Code is perfectly maintainable. The learned Counsel also had taken this Court through the language of Order XLI Rules 16, 17, 19 and 30 of the Code and had explained in detail the relevant findings which had been recorded and would maintain that in the facts and circumstances the impugned order to be set side allowing the application and restoring the appeal to be heard on merits. The Counsel also placed reliance on certain decisions.

(3.) Per contra, Sri Lakshmana Sarma, learned Counsel representing respondents would maintain that on a reading of Order XLI Rule 17 or Rule 19 of the Code it is clear that the said provisions are not applicable since this is not a case where the appeal was dismissed for default to maintain an application for restoration of such appeal. Inasmuch as the appeal was deposed of on merits, the remedy available to the appellant, if any, may be either to prefer second appeal or to move appropriate review application. At any rate, this application filed is not maintainable and it is a misconceived remedy. The Counsel also had pointed out to Order XLI Rules 17 and 19 of the Code and had explained the object of introducing such provisions in the Code.