IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO.3519 of 2008 Wamanrao Borikar ..vs.. N.I.T. WITH WRIT PETITION NO.3700 OF 2008 Harikishan Kaithalkar ..vs.. Smt. Sushilabai Saktel ================================== CORAM: B.P. DHARMADHIKARI, J. DATE:20.10.2008 Heard Advocate Bargat & Advocate Chandurkar for respective petitioner and Advocate Choube & Advocate Deshmukh for respective respondent. Attention has been invited to paragraph 10 of the judgment reported in AIR 2005 SC 226 [Shyam Su nder Sarma ..vs.. Pannalal Jaiswal and others] to contend that second appeal is the only remedy and writ petition is not maintainable. Learned counsel for petitioner tried to contend that if prayer for condonation of delay is granted then the remedy will be writ petition and hence situation which emerges is incongruous. However, in the present matter delay has not been condoned and consequently the appeals have been dismissed. Paragraph 10 of the above judgment reads as under: “10-The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi ..vs.. Mathew (1987(2) KLT 848]. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of second appeal. it was also held that Rule 3A of order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.” In view of these observations of Hon. Apex Court it is clear that application for condonation of delay in filing Regular Civil Appeal if dismissed it tantamounts to dismissal of appeal itself and hence writ petition will not lie. It is therefore, apparent that the petitioners have to challenge the order of dismissal of appeal as it has effect of confirmation of judgment and decree delivered by the trial court. Petitioner therefore to take further steps accordingly. Writ petition disposed of as not maintainable with liberty to petitioner to take appropriate steps. JUDGE smp.