1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 1 OF 2010 IN SECOND APPEAL NO. 520 of2008 Sou. Surekha Sharandchandra Mehta .....Petitioner V/s. The Chief Officer, Ichalkaranji Muncipal Council, Ichalkaranji. .....Respondent Mr. P.D. Dalvi, Advocate for the applicants. Mr. N.J. Patil, Advocate for respondents. CORAM:- A.M.KHANWILKAR, J DATED:- MARCH 26, 2010. P.C. This Review Petition takes exception to the order passed on November 24, 2009 in Second Appeal No. 520/2008. The Second Appeal was disposed of on the finding that the District Court could not have entertained the Appeal preferred by the Applicant as the only remedy available against the decision of the Trial Court was by way of Appeal from Order under Order 43 of Civil Procedure Code. On that finding, the Court opined that the order passed by the District Court which was subject matter of challenge in the Second Appeal cannot be sustained. At the sametime, it was held that the Appeal presented before the District Court by the Applicant was not maintainable. Instead, this 2 Court gave liberty to the Applicant to file Appeal from Order before this Court against the order passed by the Trial Court returning the plaint. 2. According to the Applicant, although the opinion recorded by this Court that the remedy against the order passed by the Trial Court was by way of Appeal from Order, is unexceptionable. However, this Court has glossed over the crucial fact that the Applicant had in fact filed composite Appeal Memo before the the District Court which presupposes that the Applicant had invoked jurisdiction of the District Court under Order 43 of Civil Procedure Code. The argument though attractive at the first blush, clearly overlooks the fact that the District Court in the impugned decision dated 4th February, 2008 proceeded to decide the matter as if it was a regular Appeal. Counsel for the Applicant would submit that the nomenclature of the decision does not mean that the said Court had no jurisdiction. 3. Indeed, the District Court may have jurisdiction to entertain the Appeal from Order against the decision of the Trial Court keeping in mind the principal relief claimed in the suit filed by the Applicant, but that does not mean that the jurisdiction of regular Appeal and Appeal from Order is the same. Both these remedies are separate remedies and have to be proceeded according to the parameters specified under the relevant provisions. Suffice it to observe that only the opinion recorded in Order dated 24th November, 2009 which is under review to the extent that the Applicant may file Appeal from Order before this Court will stand recalled in terms of this order. Instead, it is observed that the Applicant may take recourse to remedy of Appeal from Order before the District Court. 4. Accordingly, the operative order that ought to prevail in the Second 3 Appeal should read as follows:- “1. The Second Appeal is allowed. 2. The impugned decision of the District Court in Regular Civil Appeal No. 282/2005 dated 4th February, 2008 is set aside. Instead, liberty is granted to the Applicant/Respondent in the Second Appeal to file Appeal from Order before the District Court against the decision of the Trial Court dated 19th July, 2005, if so advised. If such Appeal from Order is filed within 30 days from today, the Counsel appearing for the Respondent-Original Appellant submits that they would not take objection regarding the maintainability of the said Appeal on the ground that it is barred by limitation. In other words, both the parties will pursue the said proceedings on merits and the Applicant will not be non-suited on the ground of Appeal being barred by limitation. If such Appeal is filed within specified time, the District Court shall dispose off the same expeditiously.” Review Application disposed of on the above terms. (A.M.KHANWILKAR, J)