1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.180 OF 2005 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s Orders Mr.M.A.Kandharkar, learned counsel for applicant. (CORAM : A.V.POTDAR, J.) DATE : 06/05/2010 Heard. In view of the ratio laid down in the matter of Shamsundar Sarma versus Pannalal Jayaswal and others, reported in (2005)1 SCC 436, in which it is held that “dismissal of appeal for default or as barred by limitation, held can not be treated on a par with non-filing or withdrawal of appeal. An appeal when dismissed or refusal to condone delay is nevertheless a decision in the appeal. Merely because there is no merger of the decree of the trial court in that of the appellate court in a case of this nature, does not imply that said explanation would not be applicable.” and the challenge to such order i.e. proper remedy is the second appeal. In view of this ratio, 2 learned counsel seeks leave to withdraw this civil revision application with leave to file the second appeal. Leave granted. Civil revision application stands disposed of as withdrawn with the aforesaid liberty. (A.V.POTDAR, J.) khs/MAY 2010/cra180-05