Arun Bhansali, J. - (1.) THIS appeal under Order XLIII, Rule 1 CPC has been preferred against the order dt. 09.11.2009 passed by the trial Court whereby, the application filed by the respondent under Order VII, Rule 11 CPC has been allowed and the suit has been dismissed as barred by limitation. A preliminary objection was raised by learned counsel for the respondent that appeal under Order XLIII, Rule 1 CPC was not maintainable against the said order dt. 09.11.2009.
(2.) LEARNED counsel for the appellant has relied on a judgment of Hon'ble Andhra Pradesh High Court in the case of Ragam Yellaiah & Ors. vs. Chinta Shankaraiah reported at : 2004 (1) CCC 549 (AP). The said view taken by the learned Single Judge has been overruled by the Hon'ble Andhra Pradesh High Court vide its Full Bench judgment dt. 11.04.2011 in the case of Molugu Ram Reddy & Ors. vs. Molugu Vittal Reddy & Ors. inter alia holding that: - In the result for the above reasons, the reference is answered as follows. On the true construction of Sections 2(2), 2(9), 2(14) and Sections 96, 104 and 105 of the Code of Civil Procedure, the conclusion is irresistible that a judgment rejecting a plaint is "decree" and is appealable under Sec. 96. A miscellaneous appeal against an order rejecting the plaint would not lie. There is a much consensus of judicial opinion that supports this conclusion. A Plaintiff, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VII Rule 11(a) to (f), is entitled to file a regular appeal under Sec. 96, and a miscellaneous appeal under Sec. 104 read with Order XLIII Rule 1 is barred.
(3.) IN that view of the matter, the appeal under Order XLIII, Rule 1 CPC is apparently not maintainable and the same is, therefore, liable to be dismissed.;