IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2113 of 2007 SANJAY KUMAR @ SANJAY KUMAR PRASAD, SON OF SHRI PREYARE SAH, RESIDENT OF VILLAGE AND POST OFFICE CHUHARI, P.S. CHANPATIA, DISTRICT WEST CHAMPARAN ….. APPELLANT ….. PETITIONER Versus 1. JATTA SHANKAR YADAV , SON OF DULAR CHAND YADAV, RESIDENT OF VILLAGE AND POST OFFICE CHUHARI, P.S. CHANPATIA, DISTRICT WEST CHAMPARAN …. RESPONDENT .. OPPOSITE PARTY 2. KAADARI DEVI DAUGHTER OF DHANAI YADAV, WIFE OF LAXMAN YADAV RESIDENT OF VILLAGE PARSU TOLA, P.S. LURIYA, DISTRICT WEST CHAMPARAN (a) LAKHPATI DEVI, DAUGHTER OF DHANLAL YADA, WIFE OF JHAGARU YADAV, RESIDENT OF BANKATWA, P.S. BAGAHA, DISTRICT WEST CHAMPARAN (b) BINDA YADAV, SON OF JAYEE YADAV, RESIDNET OF VILLAGE SHITLAL RAI’S METHIA P.S. LAURIYA, DISTRICT WEST CHAMPARAN 3. KODAI YADAV, SON OF DHANAI YADAV RESIDENT OF VILLAGE AND POST OFFICE CHUHARI, P.S. CHANPATIA, DISTRICT WEST CHAMPARAN …..RESPONDENTS …. OPPOSITE PARTIES ----------- For the petitioner : Kumari Amrita, Advocate ------ 2 05.04.2010 Heard learned counsel for the petitioner. Learned counsel for the petitioner fairly submits that this civil revision arising out of an order passed by the appellate court affirming the order passed by the trial court under Order XXXIX Rule 1 of the Code of Civil Procedure may not be maintainable in - 2 - view of the law laid down by the Apex Court in Shiv Shakti Coop. Housing Society, Nagpur v Swaraj Developers and others, reported in (2003) 6 Supreme Court Cases 659 and Surya Dev Rai v. Ram Chander Rai and others, reported in (2003) 6 Supreme Court Cases 675. However, it is submitted that in view of the aforesaid decisions of the Apex Court, the proviso to Section 115(1) of C.P.C. cannot take away the right of the petitioner to challenge the impugned order in a properly constituted writ petition under Article 227 of the Constitution of India. Thus, learned counsel for the petitioner seeks permission to withdraw this application to avail any other remedy which would be available to the petitioner under law. In the above view of the matter, this Civil Revision is dismissed as withdrawn. Spd/- (Dr. Ravi Ranjan, J.)