1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2637 OF 2009 Radha w/o Radhakishan Kardile, R/o-Manoor, Tq-Majalgaon, District-Beed. ...PETITIONER. VERSUS Shivaji s/o Kashinath Thombare, R/o-Renapuri, at present Residing at Deola ()Kh.), Tq-Majalgaon, Dist-Beed and others. ...RESPONDENTS. ... Mr.K.J. Suryawanshi Advocate for Petitioner. Mr.S.J. Salunke Advocate for Respondent No.1. None present for Respondent Nos.2A, 2B, 3 & 4. ... CORAM: K.K. TATED, J. DATE : 22ND JULY, 2009. PER COURT : 1. By this Petition under Article 227 of the Constitution of India, the Petitioner - original applicant challenges the order dated 18th July, 2008 passed by District Judge, Majalgaon in Misc. Civil Application No.35 of 2006. The Petitioner preferred an 2 appeal against the Judgment and decree dated 9th March, 1999 passed by Civil Judge, Junior Division, Majalgaon in Regular Civil Suit No.116 of 1988. There was delay in preferring the appeal and therefore the Petitioner filed Misc. Civil Application No.35 of 2006 for condonation of delay and the same came to be rejected. 2. Learned counsel appearing on behalf of Respondent No.1 raised preliminary objection that Writ Petition under Article 227 of the Constitution of India is not maintainable in view of the Apex Court Judgment in the matter of Shyam Sunder Sarma vs. Pannalal Jaiswal and others, reported in (2005) I Supreme Court Cases, 436. The Apex Court held that an appeal dismissed on refusal to condone delay is nevertheless a decision in the appeal and therefore regular appeal is maintainable against that order. In view of this fact, the learned counsel for the Petitioner seeks to withdraw present Writ Petition, with liberty to take appropriate steps. Liberty granted. Writ Petition is disposed of as withdrawn. [K.K. TATED, J.] asb/JULY09/wp2637.09