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Judgment
A.P. Lavande, J.—Heard Mr. Diniz, learned counsel for the petitioner and Mr. Kakodkar, learned counsel for the respondents. Mr. Kakodkar, learned counsel for the respondents has placed reliance upon the judgments in cases of Chandrakant Govind Sutar Vs. M.K. Associates and anr. 2003 (4) BCR 169, Chandu s/o Jagannath Ambekar and anr. Vs. Digambar s/o Kisanro Kulkarni and ors.,2004 (4) MLJ 69 and Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, and submitted that the present petition is not maintainable since the petitioner has an efficacious remedy u/s 115 of C.P.C.
Per contra, Mr. Diniz, learned counsel appearing for the petitioners placing reliance upon the judgment delivered by the learned Single Judge of this Court in the case of Bansidhar Ramratan Upadhyay Vs. Ramchandra Ramnarayan Totla, submitted that the facts in the case of Bansidhar Ramratan Upadhyay are almost identical in the present case. He submitted that in the said case the learned Single Judge has held that the an order passed under provisions of Order 39 is an order passed in suit and not beside the suit and revision against it is not maintainable after considering various judgments of this Court and the Apex Court.
I have considered the submissions made by the learned counsel for the parties. I am of the considered opinion that the ratio laid down in the case of Bansidhar Ramratan Upadhyay (supra) is squarely applicable in the present case. In my opinion, against the impugned order remedy by way of revision is not maintainable in as much as by the impugned order delay in filing appeal against an order passed under Order 39 Rule 2A has been condoned. Therefore, I do not find any merit in the preliminary objection taken on behalf of the respondents that the writ petition is not maintainable.
At the request of the counsel for the parties stand over to 18/01/2011.