SUNIL S/O. BANWARI LOIYA vs PURUSHOTTAM S/O KRISHNAJI PETHE AND ANOTHER

Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

The petitioner is the original plaintiff, and the suit filed by him for declaration and injunction was dismissed by the Trial Court on merits. He

preferred an application for review and the same was also dismissed. Normally, against a decree passed by the Trial Court, there would be First

Appeal under Section 96 of the Code of Civil Procedure. However, there is no appeal provided against the order dismissing the review application.

Faced with this predicament, the present writ petition is preferred.

Keeping in view the decision of this Court delivered on 16Â11Â2009 in Writ Petition No.1793 of 2005 [Sunil s/o Banwari Loiya v. Purushottam s/o

Krishnaji Pethe and another], which is interÂparty, this writ petition can be entertained and decided on merits. However, the position of law is that

there shall be no merger of a decree if an application for review of it, is dismissed. It would be open for the petitioner to file a regular appeal under

Section 96 of the Code of Civil Procedure and in that event, it may not be necessary for him to challenge the order of review. If the petitioner

succeeds in getting the original decree set aside, the natural consequence would be that the order of review would not survive. It may, therefore,

not be proper for this Court to foreclose the remedy of appeal under Section 96 of the Code of Civil Procedure available to the petitioner on the facts

and law both as against the remedy of writ petition, which is restricted and discretionary.

There would be question of delay in filing an appeal under Section 96 of the Code of Civil Procedure challenging the original decree. Obviously,

the pendency of this writ petition before this Court from 11Â2Â2016 till this date and the period spent in prosecuting the review petition can be taken

into consideration for exclusion while counting the period of limitation, in terms of Section 14 of the Limitation Act. Hence, if the petitioner prefers

an appeal before the lower Appellate Court under Section 96 of the Code of Civil Procedure within a period of two weeks from today, the Court shall

treat such appeal to have been filed within a period of limitation and proceed to decide it on its own merits.

The petition is, therefore, disposed of with liberty to the petitioner to file such appeal. All questions are left open to be agitated in appeal. No

order as to costs.