1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4491 of 2008 IN FIRST APPEAL NO. 1503 of 2007 The State of Maharashtra .. Appellant versus Subrao L. Gaikwad .. Respondent ... Mr.A.R. Patil AGP for the applicant. CORAM : D.G. KARNIK, J DATED : 10th October 2008 P.C.: 1. Heard learned AGP for the respondent. 2. This application is made for setting aside the order of dismissal of the appeal. By an order dated 28th April 2008, this court passed a 2 conditional order directing the applicant to take steps for service on the respondent within eight weeks failing which the matter was to stand dismissed. The period of 8 weeks expired on 23d June 2008. Since steps were not taken, appeal stood dismissed. This application is made for setting aside that order. In my view, application is liable to be rejected for the following reasons. 3. The conditional order dated 28th April 2008 appears to be passed under Order 9 Rule 5 of the Code of Civil Procedure though it has not been so mentioned in the order. Order 9 Rule 5 says that when summons has been issued and returned unserved and applicant fails to take steps for a period of seven days from the date of return or to apply for issuance of a fresh summons, the court shall make an order that the suit shall be dismissed. The applicant had not taken steps for service on unserved respondents and therefore conditional order of dismissal was passed which is referable to the power under Order 9 Rule 5 of the Code of Civil Procedure. Sub-rule (2) of Rule 5 of Order 9 provides that where the suit is so dismissed the plaintiff may subject to law of limitation bring a fresh suit. There is no provision for restoration of a suit or an appeal which has been dismissed under Order 9 Rule 5 of the 3 CPC but law permits the plaintiff/appellant to file fresh suit/ appeal subject to law of limitation. Thus, the appropriate remedy for the applicant is to file a fresh appeal and not apply for restoration. 4. The appeal stood dismissed on 23rd June 2008. Under Article 122 application for setting aside if at all it was maintainable, could have been made within a period of 30 days. Application is being filed on 18th August 2008 which is barred by limitation. It is alleged in paragraph no.5 of the application that the delay was not intentional but the same was caused for want of knowledge. What facts were not known to the appellant are not disclosed. Therefore, prima facie it appears that "want of knowledge" was of the conditional order dated 28th April 2008. Statement is obviously incorrect because learned AGP Mr.Manchekar was present and heard before passing of the conditional order. Therefore, applicant was aware of the order. 5. In the circumstances, there is no merit in the application which is hereby dismissed. (D.G. KARNIK, J)