1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4656/2008 Purushottam Dewaji Bagde vs. Manikchand Shasamji Rangari and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- CORAM : S.R.DONGAONKAR, J. DATE : 17 th FEBRUARY , 2009 Heard Shri V.D.Muley, Advocate, for the petitioner and Shri Saboo, Advocate, for Respondent Nos. 1 & 2. The application for delay condonation in filing the appeal of the petitioner/ original plaintiff in M.J.C. No. 79/07 was rejected by the Principal District Judge, Bhandara, by impugned order dated 20th July, 2008. The learned counsel for the petitioner has relied on the judgment of the Apex Court in (2007) 11 SCC 285; Bhag Mal @ Ram Bux and others vs. Munshi (dead) by Lrs. and others, particularly paras 32 & 33, which read thus- “32, Reliance has also been placed by Mr Gupta on Mamuda Khateen vs. Beniyan Bibi, wherein it was held that an order rejecting the memorandum of appeal following the rejection of an application under section 5 of the Limitation Act for 2 condonation of the delay in filing the appeal is not a decree but incidental to an order against which an application in revision under Section 115 of the Code may lie but no appeal under Order 43 Rule 1 of the Code will be maintainable. If the application under Section 5 is rejected, the order rejecting the said application cannot be a decree and thus, the order rejecting the memorandum of appeal would merely be an incidental order. 33, We have noticed hereinbefore that the said view has not been accepted by this Court in Sohan Lal vs. Raghunath Prasad, whereupon Mr. Gupta, learned counsel placed strong reliance. The question which arose for consideration therein was as to whether an order of abatement would amount to a decree for the purpose of maintainability of an appeal there against although there existed no provision therefor”. to contend that mere order of rejection of application for condonation of delay is bad and the same can be a subject matter of challenge in the writ petition. However, at the Bar, it is submitted that the other Single Bench of this Court has passed an order to direct the lower appellate court, in such matters, to pass appropriate orders on the memo of appeal under Section 96 of C.P.C. 3 Learned counsel for the respondent had nothing specific to submit in this regard. Admittedly in the present matter, the Principal District Judge, Bhandara, has not passed any order consequent to the impugned order on the memo of appeal under Section 96 of C.P.C. and therefore, there is difficulty in assessing as to whether writ petition would be tenable or the relevant orders can be challenged in second appeal. In this view of the matter, the learned Principal District Judge, Bhandara, is directed to pass appropriate orders on memo of appeal under Section 96 of C.P.C. consequent to the impugned order as early as possible in any case within one month from the date of appearance of the parties before the Court after hearing them. The parties shall appear before the Court on 7th March, 2009 at 11 a.m. It is made clear that this Court had not expressed any opinion about the merits of the matter. Petition disposed of. JUDGE Rvjalit