CIVIL REVISION No.674 OF 1999 (Against the order dated 12.4.1999 passed by the Subordinate Judge-VII, Muzaffarpur in Partition Suit No. 133 of 1987.) GULZAR THAKUR---------------------------- (Petitioner) Versus MOSTT.SHOBHA DEVI & ORS--------------(Respondents) For the Petitioner:- Mr. Gajendra KR. JHA NO.2 AND Mr. Nasim Akhtar Ansari For the Respondents:- Mr. Sashi Bhusan Pd. Sinha P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan, .J.J This revision is directed against the order dated 12.4.1999 passed by the Subordinate Judge-VII, Muzaffarpur in Partition Suit No. 133 of 1987, whereby the application filed by the petitioner for condoning the delay in filing objection to the award dated 4.2.1999 has been rejected. Mr. Gajendra Kr. Jha, appears on behalf of the petitioner. Whether an order dismissing the application under Section 5 of the Limitation Act shall be revisable under Section 115 of the Code of Civil Procedure or such an order - 2 - would be appealable under Section 39 of the Arbitration Act is the first question which needs our answer. In view of the authoritative pronouncement of the Supreme Court in the case of ESSAR CONSTRUCTIONS Versus N.P. RAMA KRISHNA REDDY (2000) 6 SCC 94, there is no escape from the conclusion that such an order is revisable. In the said case it has been observed as follows: - “Because of the applicability of Section 5 of the Limitation Act, 1963, if the Court has not pronounced judgment for whatever reason, although the time prescribed for making the application has expired and an application for setting aside the award is made with a prayer for condonation of delay, the court cannot pronounce judgment until the application is rejected. Even after a decree is passed under Section 17 an application under Section 30 can be entertained provided sufficient cause is established. In either case the rejection of the application would be a refusal to set aside the award. It is to be emphasized that under Section 17 the grounds of refusal are not specified nor is there any limitation on the word “refusal” to mean only a refusal on merits.” An order refusing to set aside an award is appealable under Section 39 of the Arbitration Act. In view of the aforesaid there is no escape from the - 3 - conclusion that the present revision application is not maintainable. We thought to give liberty to the petitioner to convert this revision application in appeal, but this Court being not the Court authorized by law to hear appeal from original decree on account of the value of the suit we refrain from giving the aforesaid opportunity to the petitioner. However, this will not preclude the petitioner to file appeal along with the application for condonation of delay and contend its condonation on the ground that he was pursuing the civil revision application before this Court bona fide. In the result, the civil revision application is dismissed as not maintainable with the liberty aforesaid. Patna High Court, Dated 3rd September,2008 P.K./N.A.F.R. (Chandramauli Kr. Prasad, J.) (Dr. Ravi Ranjan, J.)