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2009 DIGILAW 34 (AP)

Tadkapali Shankar v. Ramaswamy

2009-02-02

P.S.NARAYANA

body2009
Judgment : This Court ordered notice on 28.08.2008 2. Sri Kowturu Vinay Kumar, learned counsel entered appearance on behalf of Respondent No.1. 3. The matter is coming up "for admission". 4. Heard Sri Kovai Venu Gopal, the learned counsel representing the appellant/claim petitioner and Sri Kowturu Vinay Kumar, the learned counsel representing the first respondent. 5. Sri Kovai Venu Gopal, the learned counsel representing the appellant had pointed out to the substantial questions of law, which had been specified in ground No.6 (a) (b) (c) and (d) and made further elaborate submissions. The learned counsel had taken this Court through the contents of the order made in C.M.A.No.27 of 2007 on the file of the VI Additional District & Sessions Judge, (Fast Track Court) Nizamabad, Kamareddy and would maintain that in the light of the facts and circumstances, it would be just and proper to admit the present C.M.S.A. and pass appropriate interim orders. 6. Per contra, Sri Kowturu Vinay Kumar, the learned Counsel representing the first respondent raised a preliminary objection relating to the maintainability of the present C.M.S.A. The learned counsel would maintain that in E.A.No.38 of 2006 in E.P.No.17 of 2006 on the file of the Senior Civil Judge, Kamareddy, an application filed under Order 21 Rule 58 (2) & (3) read with Section 151 of the Code of Civil Procedure (Hereinafter in short referred to as "the Code" for the purpose of convenience), was dismissed. The learned counsel also would maintain that the same to be taken as decree and against the same, a regular appeal alone would be maintainable. However, C.M.A.No.27 of 2007 had been filed and the said Civil Miscellaneous Appeal itself is not maintainable. When that being so, the learned counsel also would maintain that the present C.M.S.A. against such an order made in C.M.A.No.27 of 2007 also is not maintainable. The learned counsel relied on the decision of the Full Bench of this Court reported in Gurramseetharam Reddy V. Gunti Yashoda 2004 (6) Ald 175 (F.B.) 7. Heard the learned Counsel. 8. When that being so, the learned counsel also would maintain that the present C.M.S.A. against such an order made in C.M.A.No.27 of 2007 also is not maintainable. The learned counsel relied on the decision of the Full Bench of this Court reported in Gurramseetharam Reddy V. Gunti Yashoda 2004 (6) Ald 175 (F.B.) 7. Heard the learned Counsel. 8. It is not in serious controversy between the parties that the appellant-claim petitioner filed E.A.No.38 of 2006 in E.P.No.17 of 2006 on the file of the Senior Civil Judge, Kamareddy under Order 21 Rule 58 (2) & (3) read with Section 151 of the Code and inasmuch as the same was dismissed as devoid of merits instead of filing regular appeal, C.M.A.No.27 of 2007 on the file of the VI Additional District Sessions Judge (Fast Track Court), Nizamabad, Kamareddy had been preferred. The Appellate Court also dismissed the said C.M.A. with costs. Aggrieved by the same, the present C.M.S.A had been filed. Against an order made in claim petition when a regular appeal has to be filed since the same to be treated as decree, the very filing of a civil miscellaneous appeal on the file of the VI Additional District & Sessions Judge, Nizamabad, Kamareddy is a misconceived remedy. When that being so, a further civil miscellaneous second appeal also would not be maintainable. It is needles to say that the Full Bench decision of this Court referred in Gurram Seetharam Reddy V. Gunti Yashoda (1Supra) had expressed the same view. 9. In the light of the facts and circumstances, liberty is given to the appellant-claim petitioner to present a regular appeal against the order made in E.A.No.38 of 2006 in E.P.No.17 of 2006 on the file of the Senior Civil Judge, Kamareddy to the Appellate Court instead of C.M.A. along with an application explaining the facts and circumstances of preferring C.M.A.No.27 of 2007 and further C.M.S.A. No. 22 of 2008 praying for appropriate reliefs. 10. With the above liberty, the Civil Miscellaneous Second Appeal is disposed of. No costs. Let the papers be returned to the learned counsel appearing for the appellant-claim petitioner.