IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 21252 OF 2021 (GM-CPC)

BETWEEN:

SMT. SUSHILA BAI @ SUSHEELA.A.VARMA W/O LATE SRI.AMBARISHA VARMA, AGED ABOUT 91 YEARS, RESIDING AT 406-A, SHAMBALA 2ND CROSS, 8TH MAIN, 3RD BLOCK, KORAMANGALA, BENGALURU-560034.

…PETITIONER (BY SRI. ARJUN RAO., ADVOCATE)

AND:

MR SABU.T.VARGHESE SON OF LATE MR.T.V.VARGHESE, AGED ABOUT 51 YEARS, AT NO.413, 4TH A CROSS, HRBR 2ND BLOCK, KALYAN NAGAR, BENGALURU-560043.

…RESPONDENT (BY SRI. M NASRULLAH KHAN.,ADVOCATE)

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH AND SET ASIDE THE IMPUGNED ORDER DATED 29.10.2021 PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE,BENGALURU RURAL ALLOW IA NO.3 OF 2021 FILED BY THE PETITIONER IN THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL ORDER

1. The present petition seeks to challenge an order dated 29.10.2021 passed by II Addl. Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter ‘Impugned Order’). By the Impugned Order, challenge to an order passed on an application under Order XXXIX Rule 1 & 2 of CPC, 1908 was made.

2. At the outset, attention of learned counsel for the petitioner is drawn to Order XLIII Rule 1(r) of CPC, 1908 which provides that all orders under Order XXXIX are appealable in the following manner:

“1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely: —

(a) ….

(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX”.

3. Learned counsel for the petitioner fairly concedes that the provision would be applicable in these circumstances. However she submits that the suit filed by the petitioner-plaintiff has been dismissed for non-prosecution. Thus this petition also becomes infructuous.

4. In view of what is stated above, the petition is disposed of. Needless to add, in the event the suit is revived, the petitioner will be at liberty to take appropriate remedies against the Impugned Order, albeit in accordance with law.

Digitally signed by TARA

VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU)

JUDGE SNB List No.: 2 Sl No.: 3