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2009 DIGILAW 288 (KAR)

Shaikh Moinudin v. Buransab

2009-04-15

RAVI MALIMATH

body2009
Judgment : Ravi Malimath, J. At the request of both the Counsel, the matter is taken up for final consideration. 2. Being aggrieved by the judgment and decree dated 10.1.2002 passed in O.S. No. 91/1988 on the file of the Civil Judge (Jr.Dn.), Chincholi, the petitioners preferred an appeal before the Civil Judge (Sr. Dn) Gulbarga in R.A. No. 7 of 2006. The said appeal was dismissed for non-prosecution. Respondents filed Miscellaneous No. 13 of 2007 under Order 41, Rule 19 for restoration of the appeal and the same came to be dismissed. Aggrieved by the same, respondents filed an appeal under Order 43, Rule 1 of CPC in M.A. No. 4 of 2008. The Appellate Court came to the conclusion that when ever orders are passed under Order 41, Rule 19, the remedy available to the party is before the Appellate Court and the Appellate Court in the instant case is the District Court and the said application is therefore not maintainable under law. 3. Smt. Hema L. Kulkarni, learned Counsel appearing for the petitioner contends that the impugned order is bad in law and liable to be dismissed. By placing reliance on the provisions of Order 41, Rule 19 she submits that the remedy is before the High Court and not the Appellate Court as is done in the instant case. 4. On the contrary Sri Ashok S. Kinagi, learned Counsel appearing for respondents submits that no error is committed by the trial Court inasmuch as the remedy is before the District Court itself. 5. On hearing both the Counsel, I am of the considered view that the remedy available to the parties is before the High Court and not the District Court. The appellant may apply to the Appellate Court for re-admission of the appeal. However, in this case, the said application also has been rejected. Hence, the remedy available to the respondents is before the High Court and not before the same Appellate Court which passed the order. 6. For the aforesaid reasons the order dated 29.8.2008 passed in M.A. No. 4 of 2008 is hereby set aside. The respondents are at liberty to persue the said remedy, available under law. Writ petition disposed off accordingly.