Judgment ( 1. ) THIS petition is directed against order dated 17. 09. 2007 passed by IXth additional District Judge, Jabalpur in M. C. A. No. 5/07 by which a miscellaneous appeal preferred by respondent herein was allowed and the order daled 20. 12. 2004 in M. J. C. No. 41/04 passed by IVth Civil Judge, Class-II Jabalpur was set aside. ( 2. ) THE petitioner assailed the aforesaid order on following grounds:- (a) That against order dated 20. 12. 2004 in M. J. C. No. 41/04 no miscellaneous appeal was maintainable,as the trial Court by allowing an application under order 47 Rule 1 of C. P. C. directed amendment in the decree passed in Civil Suit No. 271 A/02 so the respondent ought to have preferred a First Appeal under Section 96 of the Code of Civil Procedure but no miscellaneous appeal under Order 43 Rule 1 of C. P. C. was maintainable. (b) That the appellate Court erred in considering merits of the case while deciding miscellaneous appeal against the impugned order. ( 3. ) SHRI Anoop Nair, counsel for the respondent supported the impugned order 1 and submitted that under order 43 Rule 1 (w) of the Code of Civil Procedure. 1 such a miscellaneous appeal was maintainable as it was filed against an order allowing an application under order 47 Rule 4 of C. P. C. The appellate Court was required to consider the merits of the case to appreciate the question raised in the appeal. It was obligatory on the part of the appellate Court to consider the merits of the case. ( 4. ) TO appreciate rival contentions of the parties, it would be appropriate, if factual position in the case is stated. (a) The petitioner filed a suit against respondent for mandatory injunction, registered as Civil Suit No. 271a/02. In the said suit petitioner herein. , was proceeded ex-parte as his right to file written statement was closed by the trial Court by order dated 26. 07. 03. Thereafter the plaintiff adduced ex-parte evidence and the trial court by judgment and decree passed on 28. 07. 2004 granted a decree in favour of the petitioner herein directing respondent to reconstruct damaged wall to its earlier condition within a period of 7 days. 07. 03. Thereafter the plaintiff adduced ex-parte evidence and the trial court by judgment and decree passed on 28. 07. 2004 granted a decree in favour of the petitioner herein directing respondent to reconstruct damaged wall to its earlier condition within a period of 7 days. The petitioner herein, in the plaint also sought a relief that in case such mandatory injunction is not obeyed then the respondent be directed to make payment of compensation till reconstruction of the wall. (b) As this relief was not granted by the trial Court in judgmem and decree dated 28. 07. 2004, petitioner herein moved an application under Order 47 Rule 1 of C. P. C. before the trial Court seeking relief, by amendment in the decree in respect of mesne profit, as prayed by the plaintiff. This review application was registered as m. J. C. No. 41/04. The trial Court after issuing notice in M. J. C. No. 41/04 allowed the review application and incorporated reliefs no. (3) in the decree as under :-"the plaintiff shall be entitled mesne profit at the rate of rs. 500 per day from the date of decree till reconstruction is not done by the defendant. " (c) Against the aforesaid order, respondent herein preferred a writ petition before this court but it was dismissed as not maintainable. Thereafter the respondent preferred a revision petition before this court but again it was dismissed as not maintainable. Thereafter again a writ petition was preferred by the respondent which was disposed of finally with a liberty to the respondent to file an appeal against the order dated 20 December, 2004 (Annexure P-4 ). (a) The respondent then filed a miscellaneous appeal before the appellate Court invoking powers under Order 43 Rule 1 (w) of the code of Civil Procedure which has been decided by the impugned order. ( 5. ) NOW in the light of the aforesaid facts, first contention of the petitioner may be dealt with that respondent ought to have filed a first appeal under Section 96 of the Code of Civil Procedure and a miscellaneous appeal under Order 43 Rule 1 of c. P. C. was not maintainable. The civil revision No. 294/05 was dismissed with the observations that against the impugned order dated 20. 12. 04 in M. J. C. No. 41/04 a miscellaneous appeal under order 43 Rule 1 (w) was maintainable. The civil revision No. 294/05 was dismissed with the observations that against the impugned order dated 20. 12. 04 in M. J. C. No. 41/04 a miscellaneous appeal under order 43 Rule 1 (w) was maintainable. The respondent though filed a miscellaneous appeal before this Court but it was withdrawn with liberty to file miscellaneous appeal before the appellate Court. Order 47 Rule 1 reads thus:- "1. Any person considering himself aggrieved. (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. " Order 47 Rule 4 reads thus:- "application where rejected. (l) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. (2) Application where granted.- Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided That- (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. " Order 43 Rule l (w) reads thus:-"an order under rule 4 of Order XLVII granting an application for review. " The aforesaid provisions specifically provides a miscellaneous appeal if an order under Rule 4 of Order 47 granting an application for review is passed. " Order 43 Rule l (w) reads thus:-"an order under rule 4 of Order XLVII granting an application for review. " The aforesaid provisions specifically provides a miscellaneous appeal if an order under Rule 4 of Order 47 granting an application for review is passed. In this case, the respondent had not challenged the judgment and decree passed by the trial Court dated 28. 07. 2004. The respondent was aggrieved only by the order by which an application under Order 47 Rule 1 of C. P. C. was allowed by the trial court directing payment of mesne profit in favour of the petitioner: Merely the aforesaid reliefs was inserted in the decree, will not be a ground to challenge entire judgment and decree passed by the trial Court while the respondent was aggrieved only by an order passed by the trial Court on an application under Order 47 Rule 4 of C. P. C. ( 6. ) FROM the perusal of earlier judgment and decree Annexure P-2, we find that there was no whisper of any consideration by the trial court in respect of entitlement of petitioner for mesne profit. Trial Court considered the statements of PW-3 Radheshyam Agrawal and PW-2 Satish Kaltare who produced the evidence on merits but had not stated anything in respect of mesne profit. ( 7. ) THE provisions of Order 47 Rule 1 would have been invoked by the parties within the forecorners as finds place under Order 47 Rule 1 of C. P. C. Order 47 rule 1 provides review of judgment from the discovery of new and important matter or evidence which, after exercised of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or an error apparent on the face of record, of for any other sufficient reasons. In this case, only the prayer of petitioner was to allow such relief though was prayed but was not allowed by the trial Court. ( 8. ) THE aforesaid matter was agitated by the petitioner under the clause of "mistake or error apparent on the face of record" as on other grounds such application was not filed. ( 9. In this case, only the prayer of petitioner was to allow such relief though was prayed but was not allowed by the trial Court. ( 8. ) THE aforesaid matter was agitated by the petitioner under the clause of "mistake or error apparent on the face of record" as on other grounds such application was not filed. ( 9. ) FROM the perusal of the entire judgment in C. S. No. 271a/02 we find that there was no consideration by the trial Court in respect of entitlement of the petitioner in respect of mesne profit. It appears that either no evidence was produced or this ground was not agitated or considered by the trial Court. In these circumstances, it appears, that in absence of evidence or deliberately the trial Court had not granted a decree for mesne profit in favour of the petitioner. Then it was not a case of error apparent on the face of record. Petitioner if was aggrieved by non granting of such mesne profit then he ought to have challenged the judgment and decree by filing an appeal under Section 96 of the Code of Civil Procedure but recourse of review of order was not available. However, such an application was filed and the trial Court vide. order dated 20th December 2004 Annexure P-4 allowed review application and granted the relief of mesne profit to the petitioner. ( 10. ) IN the opinion of this Court, such recourse was not available to the trial court. Modifing the decree by allowing mense profit was beyond the scope of order 47 Rufe 1 of C. P. C, when such question was not at all considered in the earlier judgment, ( 11. ) IN view of the aforesaid, if the appellate court considered this aspect in the impugned order invoking powers under Order 43 Rule 1 Clause (w)no fault is found. The appeal was maintainable, rightly entertained and decided by the appellate court. ( 12. ) SO far as, second contention of the petitioner is concerned that the appellate court while considering the appeal wrongly considered the merits of the case is concerned, the appellate court was required to consider this aspect. The appeal was maintainable, rightly entertained and decided by the appellate court. ( 12. ) SO far as, second contention of the petitioner is concerned that the appellate court while considering the appeal wrongly considered the merits of the case is concerned, the appellate court was required to consider this aspect. If such question was raised in appeal then the appellate court was required to consider the merits of the case and if considered the merits of the case to the extent of grant of relief of mesne profit, no fault is found in the impugned order. While considering the appeal under Order 43 Rule 1 (w) the appellate Court was required to examine merits of the case. The appellate court has not considered the earlier judgment on merits but confined its order limited to the extent of granting relief of mesne profit by allowing review application by the trial Court. ( 13. ) IN view of the aforesaid, second contention of the petitioner is also without any merit. This writ petition is dismissed with no order as to costs. C. C. as per rules. Petition dismissed.