IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA M.S.A.NO.40/2017 BETWEEN 1. SRI LAKSHMINARASAPPA @ LAKSHMINARASAIAH, S/O.R.NARSIYAPPA, AGED ABOUT 54 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT.
2. SRI NARASIMHA MURTHY S/O NARASIYAPPA, AGED ABOUT 43 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT. ... APPELLANTS (BY SRI K N VENKATESH, ADVOCATE) AND 1. SRI S N NARASIMHA MURTHY S/O LATE NARASIYAPPA, AGED ABOUT 50 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT.
2. SRI S N NAGESH S/O LATE NARASIYAPPA, AGED ABOUT 48 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT.
3. SMT VARALAKSHMI D/O LATE NARASIYAPPA, AGED ABOUT 46 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT.
4. SRI S N RAMAKRISHNA S/O LATE NARASIYAPPA, AGED ABOUT 43 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT.
5. SRI S N NATARAJA S/O LATE NARASIYAPPA, AGED ABOUT 41 YEARS, RESIDENT OF SOMASETTIHALLI VILLAGE, HOSUR HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT. ... RESPONDENTS THIS MSA IS FILED UNDER SEC.104 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.11.2016 PASSED IN M.A NO.56/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GOWRIBIDANUR, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 15.11.2014 PASSED ON IA NO.1 IN OS NO.356/2014 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, GOWRIBIDANUR ALLOWING THE IA NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SEC.151 OF CPC., THIS MSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the 1st defendant in OS.No.356/2014 on the file of Civil Judge & JMFC, Gowribidanur.
2. In this appeal, the office has raised an objection regarding maintainability holding that this second appeal is not maintainable against the order dated 25.11.2016 passed in MA.No.56/2014 on the file of Senior Civil Judge & JMFC, Gowribidanur. In this background, a memo is filed by the learned counsel for the appellant seeking permission to convert this second appeal into writ petition.
3. The memo is taken on record. However, considering the fact that the appeal being wrongly filed, the same cannot be permitted to be converted in to writ petition inasmuch as the grounds which are required to be urged in an appeal and writ petition being different, this Court would permit the appellant to withdraw this second appeal reserving liberty to him to initiate appropriate proceedings either in writ Court or in any other manner known to law.
With such liberty, this appeal is dismissed as withdrawn.
Sd/- JUDGE nd/-