^ HIGH COURT OF 1C{_JJ^ •|ARTTISGA^IZ1 XT BILASPUR ^ f\y~ Coram:- Applicant Appellant Respondent Leaal Representative Hon'ble Mr. T.P. Sharma & Hon'ble Mr. R.N. Chandrakar, JJ M.C.C.fPRlNo.298of2010 Mohd. Toshib aged about 47 years, s/o. Late Mohd. Siddique By Caste Musalman, r/o. Bus Stand, Distt. Korba. Versus Teemanlal aged about 40 years, S/o Jarharam Sao, B Caste Sahu, R/o Purani Basti, Distt. Korba (Since Dead) 1A. Smt Subhadra Sao, aged about 54 years, W/o Teeman Lal 1B Smt Reena Sahu, aged about 27 years, D/o Teemanlal 1C. Ku. Leena Sao, aged about 24 years, D/o Teemanlal 1 D. Virendra aged about 19 years, S/o Late Teemanlal All R/o Purani Basti, Korba Application for rehearina of apDeaI on merit after recallina the order Present: Shri Parag Kotecha, counsel for the petitioner. Oral Order (Passedon 18h of February, 2010) Per Hon'ble Shri T.P. Sharma. J This is a petition for rehearing of the appeal on merits after recalling the order dated 23.11.2006 passed by this Court in S.A. No.390/2006 on the ground that after withdrawal of the appeal by the appellant with liberty to file an application/objection before the Executing Court, the Executing Court has not considered the objection raised by the petitioner, therefore, the only remedy left to the petitioner is to go for rehearing ofthe appeal. (2) Learned counsel for the petitioner submits that the application/objection has been filed before the Executing Court under Section 47 of the C.P.C., after withdrawal of the second appeal, but the Court below has not considered his objection, therefore, he has filed this petition for rehearing of this appeal. He placed reliance on Jet Plv Wood Pvt. Ltd & Anr. vs. Madhukar Nowlakha & ors. k. reported in AIR 2006 Supreme Court 1260 in the case ofwithdrawal ofa suit of assumption, the case may be settled amicably. Subsequent fiiing of the application for rehearing ofthe suitwas allowed in terms of Section 151 of C.P.C. In Rameshwar Sarkar vs. State of West Bengal and others, reported in AIR 1986 Calcutta 19, the apex Court has further ordered that the Court possesses inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists. In Rameshwar Sarkar vs. State of West Bengal and others (supra) in which the suit was withdrawn with liberty to file afresh, the said liberty was not found permissible under the law. (3) In the present case, the second appeal was withdrawn by the appellant with liberty to file appropriate application/objection before the Executing Court. After considering the liberty so claimed, the appeal was dismissed as withdrawn with the aforesaid liberty and the appellant has exercised his right by filing application/objection before the Executing Court, which has been dismissed. The remedy to challenge the dismissal order is available to the appellant by filing a petition before the High Court and the present application for rehearing is not maintainable as the appellant has withdrawn the second appeal and once the remedy of withdrawal has been availed by the appellant, the present application is dismissed. Accordingly, this petition for rehearing of the appeal is dismissed. (4) Learned counsel for the petitioner requested for certificate to file appeal before the Supreme Court. priya (5) We do not find any question of law involved for grant of certificate. Subsequently, the prayer is rejected. -— - Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge