IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.558 of 2010 KUNAL SAHAI Versus SRI JWALA PRASAD SINHA & ORS. ----------- 2 23.11.2010 Office has pointed out that the lower appellate court after allowing the appeal and setting aside the judgment and decree has remitted back the matter to the trial court for determination of the objection of the defendants Ist set, hence, the instant second appeal would not be maintainable, rather a Miscellaneous Appeal would be maintainable in view of the provisions as contained in Order XLIII Rule 1(u) of the Code of Civil Procedure (hereinafter to be referred to as “the Code”). Learned counsel for the appellant does not contest the stamp report, however, submits that since the impugned judgment has been passed by the concerned District Judge, Miscellaneous Appeal would be maintainable before this court under Order XLIII Rule 1(u) of the Code, thus, he seeks leave of this Court to convert this second appeal into Miscellaneous Appeal. Permission is accorded. Let the appellant convert this second appeal into 2 Miscellaneous Appeal within two weeks, failing which, this appeal shall stand rejected as not maintainable without further reference to a Bench. In above view of the matter, let I.A. No. 8577 of 2010 filed under section 5 of the Limitation Act be also considered after conversion into Miscellaneous Appeal. SC (Dr. Ravi Ranjan, J.)