IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1714 of 2006 SOBHA DEVI Versus BIRESH KUMAR GUPTA & ORS ----------- 3 28.07.2008 Heard counsel for the petitioner. The question of maintainability having been raised by the Stamp Reporter, the same was to be taken at the time of hearing of this application. Counsel for the petitioner while addressing this Court on the question of maintainability has submitted that since the impugned order which has been passed by the Court below purportedly under Section 144 of the C.P.C., was not on merits, a revision petition under Section 115 C.P.C. was maintainable. This Court on perusal of the impugned order however finds that the Court below has rejected the prayer for restitution by examining the case of the petitioner on merit and against such an order an appeal would only lie. After this Court had passed an order that this Civil Revision application is not maintainable, counsel for the petitioner would seek permission to withdraw this Civil Revision application with a leave to file an appeal. Accordingly, this Civil Revision application is dismissed as withdrawn with the aforementioned liberty. It goes without saying that the delay in filing of the appeal by the petitioner would be considered by the appellate court by taking into consideration that this Civil Revision application had been filed under a wrong advice and remained pending before this Court from 25.09.2006 to this date. BCJ (Mihir Kumar Jha, J.) - 2 -