1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Civil Application [CAO] No. 768 of 2011 IN Misc. Civil Application [Review] St. No. 3165 of 2011 IN Writ Petition No.3072 of 2010 [decided] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. V.A. Thakre, AGP for applicants. Mr. M.P. Khajanchi, Adv., for respondent sole. ----- CORAM : B.P. DHARMADHIKARI, J. DATE : 09th September, 2011. 1. Heard learned AGP Mr. V.A. Thakre for the applicants and learned Adv. Mr. M.P.Khajanchi for respondent. 2. Prayer is condone delay of 139 days in filing Misc. Civil Application St. No. 3165 of 2011 for review of Order dated 2 nd September, 2010. 3. Learned AGP submits that administrative exigencies and communication gap have resulted in this delay. The affidavit filed is being relied upon for seeking its condonation. 4. Learned Adv. Mr. Khajanchi is strongly 2 opposing the prayer for condonation of delay. He states that delay, if any, is on account of a mistake on the part of applicants only and they cannot be permitted to take advantage of their own wrong. 5. In view of the objection raised, I have heard respective counsel on merits also, and I find that there are no mala fides on the applicants of applicants in the matter. In view of this finding, delay of 139 days in filing Misc. Civil Application St. No. 3165 of 2011 is condoned. Misc. Civil Application St. No. 3165 of 2011 : 01. Misc. Civil Application is heard with consent of parties. 02. Learned AGP points out that Writ Petition was disposed of after noting that a remedy of filing an appeal under Order 43, Rule 1 (d) of Civil Procedure Code is available to applicants. He invites attention to the fact that Civil Suit filed vide Regular Civil Suit No. 14 of 1999 by respondent-plaintiff was under Order 37, Civil Procedure Code, and it was decreed ex parte on 26 th June, 2000. Application was then filed for setting aside that decree, and though application ought to have been under Order 37, Rule 4, Civil Procedure Code, inadvertently provisions of Order 9, Rule 13 were mentioned. This error was corrected before Trial Court itself and Trial 3 Court in impugned Judgment dated 25 th September, 2009 has accordingly referred to provisions of Order 37, Rule 4, Civil Procedure Code. But, while filing petition before this Court, copy of uncorrected application referring to Order 9, Rule 13, Civil Procedure Code, came to be tendered, and because of this application and mention of a wrong provision therein, appeal under Order 43, Rule 1 (d), Civil Procedure Code, is found maintainable. Learned AGP states that against the order/Judgment passed on an application under Order 37, Rule 4, Civil Procedure Code, no appeal is provided under Order 43, and as there is no other remedy, the petition before this Court is the only option. 03. Though learned Adv. Mr. Khajanchi does not dispute the factual aspect, according to him, as document tendered by applicants was looked into by this Court, no case for review is made out. 04. After hearing both the learned counsel, I find that petition is held to be not maintainable because of availability of remedy under Order 43, Rule 1 (d), Civil Procedure Code. The remedy is available to challenge rejection of application under Order 9, Rule 13, Civil Procedure Code. Here, the application rejected by Trial Court is one under Order 37, Rule 4, Civil Procedure Code. Hence provisions of Order 43, Rule 1 (d) are not attracted. 05. It is, therefore, clear that as 4 relevant facts could not be pointed out to this Court, there is manifest error in exercise of jurisdiction. The order dated 2 nd September, 2010 in Writ Petition No. 3072 of 2010 is, therefore, recalled and Writ Petition No. 3072 of 2010 is restored back to file. Registry to place Writ Petition for further consideration before appropriate Bench. 06. Misc. Civil Application St. No. 3165 of 2011 is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. Judge |Hedau|