{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.12 OF 2010 Kautika s/o Ananda Mutkule APPELLANT VERSUS Munjalabai w/o Kautika Mutkule & others RESPONDENTS ....... Mr. P.N.Kalani, Advocate for appellant Mr. S.S.Kudale, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE: 20 th April 2010 PER COURT: 1. Today, Mr.Kudale, learned counsel filed VP and affidavit in reply on behalf of the respondents. 2. By the present appeal, the appellant has challenged the order dated 18.07.2009 passed in Miscellaneous Application No.32/2009. The said application was filed by the appellant along with an application for restoration of RCA No.49/2006, which was dismissed for default on 31.03.2009. 3. During the course of hearing, learned counsel for the {2} respondents, raised an objection that as the subject matter of the Appeal From Order does not cover within the ambit of Order 43 Rule 1 (t) of the Civil Procedure Code r/w section 104 of the Civil Procedure Code, the appeal is not maintainable. The correct legal position is spell out by the Apex Court in the matter of “Shyam Sundar Sarma V/s Pannalal Jaiswal” reported in (2005) 1 SCC 436. In the said judgment the Apex Court has held that if the application for condonation of delay is presented along with the appeal against the decree and if the said application for condonation of delay is rejected, then the challenge to the order of the said rejection emerges in the challenge before the superior court. In view of this, learned counsel for the appellant seeks leave to withdraw the present appeal with liberty to avail appropriate remedy. In the result, the appeal from order is dismissed as withdrawn with the aforesaid liberty and stands disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao12-10 {3} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.1406 OF 2010 IN APPEAL FROM ORDER NO.12 OF 2010 Kautika s/o Ananda Mutkule APPELLANT VERSUS Munjalabai w/o Kautika Mutkule & others RESPONDENTS ....... Mr. P.N.Kalani, Advocate for appellant Mr. S.S.Kudale, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE: 20 th April 2010 PER COURT: 1. As the Appeal From Order is dismissed as allowed to withdraw, the present civil application does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao12-10