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Judgment
Ajay Tewari, J
CM NO.6353-C-2010
This is an application for condonation of 32 days delay in re- filing the appeal.
For the reasons recorded in the application, the same is allowed and delay of 32 days in re-filing the appeal is condoned.
RSA NO.2086 OF 2010
This appeal has been filed against the judgment of the lower Appellate Court. Since a very limited issue has been raised which has now been settled
by the learned counsel, detailed reference to the facts may not be necessary.
The solitary contention raised by the learned counsel for the appellant is that the lower Appellate Court allowed an appeal filed by respondent No.1 but
that appeal was not maintainable because it was only against a finding and not against the decree. He has relied upon a judgment of the Supreme
Court titled as Banarsi & Ors. Vs. Ramphal, reported in AIR 2003 Supreme Court 198 9in support of this proposition. Mr. Sandeep Punchhi,
Advocate states that he is not in a position to dispute this proposition of law but if respondent No.1 now files an independent suit the appellant would
take the plea that it is either barred by res-judicata and constructive res-judicata.
Counsel for the appellant has fairly stated that in case respondent No.1 now files an independent suit the appellant would not take the plea of res-
judicata and would contest any such suit on merits.
Appeal stands disposed of in the above terms.
Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.