Sunanda Vs. Lakshmi Bai - Court Judgment
|Court||Karnataka High Court|
|Case Number||RSA No. 693 of 1981|
|Acts||Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rules 12, 14, 18 and 19 - Order 9, Rule 5 and 5(2)|
|Appellant Advocate||S.K. Kulkarni, Adv.|
|Respondent Advocate||R.U. Goulay, Adv. for R-2;Sona G. Vakkund, Adv.|
.....rule 12 -- notice regarding return of process to be mandatorily affixed on appellate court house.;appeal dismissed under order 9 rule 5 cpc for failure to take steps to re-issue notice returned unserved. by application under section 151 cpc appellant sought recalling or setting aside the order. contended that in the absence of compliance with rule 12 in chapter xiii of high court rules requiring return of process being notified by the office, return of notice unserved was not known.;this appeal has been admitted. notices for hearing of the appeal were issued. therefore, order 41 rule 12 cpc would be applicable. when that is so, the provisions of order 41 rule 14 cpc would be mandatorily applicable. order 41 rule 14 cpc mandatorily prescribes that the notice of the day fixed forbearing.....order 41 rule 19 -- provides remedy in case of dismissal under rule 18 -- appeal already admitted cannot be dismissed under order 9 rule 5.if an appeal is dismissed under order 41 rule 18 cpc a right is given to the party aggrieved under order 41 rule 19 cpc. in regard to the dismissal of the suit, the remedy is provided in older 9 rule 5(2) of cpc. it, therefore, follows that an appeal which has been already admitted cannot in law be dismissed tor non-prosecution by applying the provisions of order 9 rule 5 cpc.
41 Rule 19 -- Provides remedy in case of dismissal under Rule 18 -- Appeal already admitted cannot be dismissed under Order 9 Rule 5.
If an appeal is dismissed under Order 41 Rule 18 CPC a right is given to the party aggrieved under Order 41 Rule 19 CPC. In regard to the dismissal of the suit, the remedy is provided in Older 9 Rule 5(2) of CPC. It, therefore, follows that an appeal which has been already admitted cannot in law be dismissed tor non-prosecution by applying the provisions of Order 9 Rule 5 CPC.