1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3368 OF 2008 Shri Laxman Gopala Kanhere. ..Petitioner. V/s. Dr.Vijay Vitthal Ramdasi & Anr. ..Respondents. Mr.R.M.More with Mr.U.P.Warunjikar for Petitioner. Mr. R.M.Pethe i/b. R.S.Khadapkar for Respondent No.2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 4, 2008. DATE : AUGUST 4, 2008. DATE : AUGUST 4, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Preliminary objection regarding maintainability of this Writ Petition filed under Article 227 of the Constitution of India is raised by the Respondent on the ground that the Petition is directed against the Order passed by the Court below, is in the nature of decree-in view of section 2(2) of C.P.Code. It is not in disputed that the Order impugned is passed on an application filed under section 144 of the C.P.Code. Any order passed on such application will be in the nature of a decree in terms of Section 2(2) of the C.P.Code. If it is so, 2 it will be an appellable decree, which the Petitioner will have to assail by way of remedy of appeal as permissible by law. 3. Counsel for the Petitioner however, has placed reliance on the decision of the Allahabad High Court in the case of Nityanand Tripathi & ors. V/s. IIIrd Additional District Judge, Mirzapur & Ors. reported in 1996(1) Civil LJ 386. In the said Judgment, it is observed that it is settled law that restitution is obligatory once a decree is set aside. It is the duty of the Court to grant restitution in such cases. It is observed in paragraph-8 of this Judgment that it is well settled that the alternative remedy is not an absolute bar to a writ petition. Significantly, the said Writ Petition was filed under Article 226 of the Constitution of India and not Article 227 of the Constitution of India. 4. Be that as it may, if it is a decree in terms of Section 2(2) of C.P.Code, the impugned order would be appellable, for which reason, question of entertaining the Writ Petition directly against such a decree does not arise. The Petitioner will have to take recourse to such remedy, as may be permissible in law. 3 5. The Writ Petition is disposed of with liberty to the Petitioner to avail of such remedy as may be advised. If proposed appeal is to be filed, the Respondents cannot be heard to contend that the same is barred by limitation, as the Petitioner was pursuing remedy of Writ Petition against the self-same decision before this Court by way of this Writ Petition. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)