1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 6586 OF 2009 Gidon Ganpat Pawar & Ors. .. Petitioners Vs Mrs Alka Subhash Bhise & Ors. .. Respondents -- Shri N.V. Bandiwadekar for the Petitioners. Shri P.P. Killedar for Respondent No.12. -- CORAM : A.S.OKA,J. DATE : 19TH JANUARY, 2010 P.C. . Heard learned counsel appearing for the parties. A challenge in this Writ Petition under Article 227 of the Constitution of India is to an order dated 30th April, 2009 passed by the District Court on an application for condonation of delay in preferring an appeal. 2. On the last occasion, when this Petition was argued, a query was made to the learned counsel appearing for the Petitioners as to how the Appeal was maintainable. 3. The learned counsel appearing for the Petitioners submitted that if the Memorandum of Appeal is read as a whole, it is very clear that the challenge in the Appeal is to a decree which was amended as per the order dated 13th October, 2003. He submitted that Page 18 of the Memorandum of Appeal makes it very clear that the challenge in the said Appeal is to the 2 decree and, therefore, the appeal is maintainable. 4. I have considered the submissions. Relevant part of the Memorandum of Appeal reads thus:- “Being aggrieved and dissatisfied with the order passed by the Learned Civil Judge Junior Division Daund, Dist. Pune below exhibit 29 in Regular Darkhast No.11/96.” 5. Exhibit-29 is an application for correction of the said decree. The order is passed on the said application on 13th October, 2003 by which under Section 152 of the Code of Civil Procedure, 1908, the decree passed in the suit which was under execution was ordered to be corrected. Even ground Nos.1 and 2 as well as 6 of the Memorandum of Appeal indicate that a challenge in the Appeal is to the order dated 13th October, 2003 passed below Application at Exhibit – 29. The 1st paragraph of the application for condonation of delay reads thus:- “There was a decree passed in the R.C.S. No.156/88 passed by the Court on dated 30.3.1993. The present applicant raise objection by filing application below exhibit 29. The Trial Court exercising judicial power vested under Section 152 amended the decree on dated 13.10.2003. The applicant filed an application for certified copy on 03.11.03 and received copy on 28.11.03.” 6. The learned counsel appearing for the Petitioners invited my attention to the submissions of the Respondents recorded in Paragraph 14 of the impugned order and submitted that even the concerned Respondents are under an impression that the Appeal preferred was against the said decree. 3 7. On plain reading of the Memorandum of Appeal, the Petitioners intended to prefer an Appeal against an order passed below Exhibit – 29 by which the decree was ordered to be amended and the said order was passed in exercise of powers under Section 152 of the said Code. Merely because there is a reference to the decree in the Memorandum of Appeal, one cannot come to a conclusion that what is challenged is the decree and not the order below Exhibit-29. The appeal against the order below Exhibit-29 was not maintainable in law. As the Appeal itself is not maintainable, it is not necessary to go into the merits of the order by which the application for condonation of delay has been rejected. No case for interference is made out in writ jurisdiction. The Petition is rejected. 8. On a prayer made by the learned counsel appearing for the Petitioners, ad-interim order passed by this Court on 31st July, 2009 will continue to operate for a period of twelve weeks from today. JUDGE