1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8524 OF 2007 Shri Dattatraya Dhondiba Choundhe. ..Petitioner. V/s. Chabubai Bakaji Taware & Ors. ..Respondent. Mr.Vilas B. Tapkir for petitioner. Mr.Mandar Limaye for Respondent NO.3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 14, 2009. DATE : JANUARY 14, 2009. DATE : JANUARY 14, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Limaye,Advocate waives notice for Respondent No.3. 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment passed by the District Judge,5, Pune dated 3rd August, 2007 in Misc.Civil Appeal No.338 of 2006. The relevant facts for deciding the present matter are as follows: 2 . A Will was executed on 3rd February, 1992. The person who executed the Will expired on 15th August, 1992. As a consequence, the Petitioner filed probate application on 3rd September, 1992. That Application was rejected on 24th November, 2005. Thereafter, the Petitioner filed Review Petition before the same Court on 20th February, 2006, which however was rejected on 29th August, 2006. The Petitioner thereafter filed Misc. Civil Appeal No.338 of 2006 before the District Court, Pune challenging both the decisions passed by the lower Court in the probate application as well as Review Petition. The Petitioner however, gave up the challenge to the Order passed on Review Petition dated 29th August, 2006 and pursued the appeal only against the Order passed on Probate application dated 24th November, 2005. The Appellate Court however, took the view that the Petitioner having preferred Review Petition against the said decision was not entitled to pursue the remedy of appeal against the same decision. For that, the Appellate Court has relied on the provisions of Order 47, in particular Rule 1 and Rule 7 of CPC. The question is whether this approach is correct. My answer to this question is an emphatic no. 3 5. The fact that the review Petition was filed by Petitioner against the decision in Probate Application dated 24th November, 2005 does not denude the Petitioner of his remedy of appeal. Remedy of appeal is a statutory remedy provided to the parties. There is no express provision, which would deny that liberty to the Petitioner. Reliance placed on the provisions of Order 47 have no application to answer the point in issue. Those provisions may be relevant to consider the issue of maintainability of the Review Petition and not the maintainability of the appeal against the Order passed on probate application. Accordingly, since this is the only reason recorded by the District Court for dismissing the appeal, while reversing the same by this Order, the appropriate course is to relegate the parties before the Appellate Court by restoring the appeal to the file of the Appellate Court, to be heard on its own merits in accordance with the law. 6. It is clarified that the objections raised on behalf of the Respondent regarding maintainability of the said appeal will have to be considered by the Appellate Court on its own merit. Essentially, two objections in that behalf have been raised. Firstly 4 that, even assuming the appeal against the order passed on probate application was maintainable, the same would be barred by limitation. In that, the order was passed on 24th November, 2005, whereas the Misc. Civil Appeal has been filed on 18th October, 2006. Indeed, this aspect will have to be addressed by the Appellate Court on its own merit. The second objection is that the remedy in terms of Section 299 would be in the nature of first appeal and not Misc. Civil Appeal. Even that aspect will have to be considered by the Appellate Court on its own merits. I do not think it necessary to express any opinion on the above said two objections in the present proceeding. 7. Accordingly, the Petition is allowed on the above terms. Restored Misc. Civil Appeal be proceeded before the District Judge, 5, Pune. Parties shall appear before the concerned District Judge on 10th February, 2009. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)