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2004 DIGILAW 199 (GAU)

Subhash Karmakar v. Alhaj Saken Ali

2004-03-23

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. Heard Mr. Sarma, learned counsel for the petitioner, and also heard Mr. N. Choudhury, learned counsel appearing on behalf of the Opposite-party. 2. By the impugned order dated 23.12.2002, passed in Misc. (J) Case No. 50/02, arising out of Title Suit No. 7/02, the learned Civil Judge (Junior Division) No. 1, Goalpara, has allowed the application for review by setting aside the order, dated 2.9.2002, passed by the same Court in T.S. No. 7/02, whereby the plaintiffs/petitioners' prayer for amendment of the plaint was allowed. 3. At the time of admission of the revision, Mr. N. Choudhury, learned counsel for the Opposite-party, has pointed out that an order allowing an application for review is covered by Order 47 Rule 4 of the Code of Civil Procedure and such an order is an appealable order under Order 43 Rule 1(W) of the CPC, and since the impugned order is an order allowing the application for review, the remedy of the plaintiffs/petitioners, in the present case, lied in preferring an appeal in terms of Order 43 Rule 1 (W)of the CPC and this revision is, therefore, not maintainable. Since this position of law is not disputed and can not be discarded, Mr. Sarma, learned counsel for the petitioners submits that the petitioners would, now, prefer an appeal in terms of Order 43 Rule 1(W) of the Code of Civil Procedure. 4. Considering the matter in its entirety, this revision is disposed of with the observation that since the present revision is directed against ah order allowing the application for review, the impugned order is an order passed under-Order 47 Rule 4 of the CPC and since such an order fails within the appellate orders. 5. Listed under Order 43 Rule 1(W) of the CPC, the present revision is not maintainable, the plaintiffs/petitioners are, however, given the liberty to prefer appeal against the impugned order in terms of Order 43 Rule 1(W) of the CPC and while preferring such an appeal, the plaintiffs/petitioners may make an application seeking condonation of delay. If such an application is made, the learned Appellate Court shall consider the same in accordance with law, bearing in mind, particularly, Section14 of the Limitation Act. 6. No order as to costs.