APPLICANT/z (Appellant) Ma; §o RESPONDENT: Legal Representative Mushir Ahmed, aged about 49 years, S/o Late Mohd. Sharif, Musalman, R/o Bus Stand Distt. Korba Versus Teemanlal aged about 4O years, S/o» Jarharam Sao, B Caste Sahu, Purani Basti, Distt. Korba (Since Dead) 1A. Smt. Subhadra Sao, aged about 54 years, W/o Teemanlal 1B. Smt. Reena Sahu, aged about 27 years, 1C. Ku. Leena Sao, aged about 24 years, D/o Teemanlal 1D. Virendra aged about 19 years, S/o Late Teemanlal AH R/o Purani Basti, Korba {Application for rehearing of appeal on merit after recalling the order} Present: Mr. Parag Kotecha, counsel for the applicant. D/o Teemanlal R/o .ORAL ORDER (1 5-2—201 0) . This is an application for rehearing of appeal on merits after dismissal of Second Appeal No.394/2006 vide order dated 23-11-2006 passed by Hon’ble Mr. Justice D.R. Deshmukh by which the second appeal was dismissed as withdrawn after giving the opportunity of fil‘tng application/ objection before the Executing Court. Division Bench: - on’ble Mr. T.P. Sharma & on’ble Mr. R.N. Chandrakar, JJ a . Rehearing is prayed on the ground that the appeal was dismissed as withdrawn with liberty, but the Executing 'Court has not considered the objection of the appellant and has dismissed the objection, therefore,_ only rehearing of appeal would serve the purpose. / HIGH COURT OF CHHATT GARH BILASPUR Miscellaneous Civil Case (PR) No.29? of 2010 53 By Caste H H . We have heard learned counsel for the applicant and perused the application. . Learned counsel for the applicant submits that the appeal was withdrawn with liberty to file objection before the Executing Court. The applicant herein has filed objection before the Executing Court, but the Executing Court has not considered the objection and has dismissed the objection. j . The appeal was not decided on merits, therefore, it be admitted for rehearing. In support of his claim, the applicant has placed reliance in the matter of Jet Ply Wood Pvt. Ltd. & Anr. v. Madhukar Nowlakha & Ors. (AIR 2006 SC 1260) in which the Apex Court has affirmed the order of rehearing of the suit after withdrawal without leave to file fresh suit under Section 151 of'the Code of Civil Procedure, 1908 (for short ‘the I Code‘) on the ground that the Court possesses inherent power to act ex debito justifiae and to do that real and substantial justice for the administration of which alone it exists. Learned counsel further placed reliance in the matter of Rameswar Sarkar v. State of West Bengal and others (AIR 1986 Calcutta 19) in which the Calcutta High Court has permitted retrial in terms of Section 151 of the Code to do complete justice in case of withdrawal of suit with or without liberty to me afresh. d« . In the present case, the second appeal was withdrawn with liberty to file objection before the Executing Court. After withdrawal of appeal, the applicant had filed objection before the Executing Court which was dismissed. Remedy to challenge the dismissal order is available to the applicant by filing petition before the Higher Court. This is not the case in which‘the appeal was withdrawn with liberty to‘ file afresh or without liberty to file afresh, but the second appeal was withdrawn with liberty to approach the Executing Court. The applicant herein has also availed the liberty given to him and after rejection of the objection, instead of availing 3 a the remedy available under the law, the applicant has filed application for rehearing of the appeal. In the present case, remedy to challenge the order passed by the Executing Court is available to the applicant and the Court maydo substantial justice in that case, therefore, we do not find any ground for rehearing ofthe appeal. . ln the matters of Jet Ply Wood & Rameswar (supra), in absence of any remedy available to the applicants therein the case was reinstituted in accordance with Section 151 of the Code. The above cited cases are distinguishable on facts to that of the present case. . For the foregoing reasons, we‘are of the considered view that the present case is not a fit case for rehearing of the appeal. Consequently, l Soma l the application for rehearing of the appeal is dismissed in limine. No orderasto costs. ._ I \ ’Sdl-Ii- - ‘Sd/_ . . g ';R;N.ghandfakm , i udge T.P.Sharma ‘3. I ', ,1 Judge . -r ,