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2013 DIGILAW 305 (UTT)

N. K. KHOLIA v. STATE OF UTTARAKHAND

2013-06-11

B.S.Verma

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) 1. Heard Sri M.C. Pande, Senior Advocate assisted by Sri Devesh Upreti, Counsel for the petitioner and Sri Pankaj Tangwan, Brief Holder on behalf of the State/respondent. 2. By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the order dated 7.3.2009, passed by Addl. District Judge/1st F.T.C. Nainital in Misc. Review Case No. 17 of 2003, N.K. Kholia Vs. State of U.P. (presently State of Uttarakhand) and another, whereby the review application was dismissed. 3. The facts of the case, in short, are that the petitioner filed suit No. 137 of 1998 for recovery of Rs. 24,000/- against the State/respondent. The said suit was dismissed by the trial court vide judgment and decree dated 23.5.2003. Aggrieved by the judgment and decree the petitioner filed review application which was registered as Misc. Review Case No. 17 of 2003, which was too dismissed vide impugned order dated 7.3.2009. Further aggrieved the petitioner has preferred this writ petition. 4. Learned Brief Holder appearing on behalf of the State has contended that the writ petition is not maintainable against the impugned order rejecting the review application. 5. The learned Senior Advocate appearing on behalf of the petitioner has contended that the writ petition is maintainable since in view of Order 43 Rule 1(w)C.P.C. which provides that appeal from order would lie only against an order passed under Rule-4 of Order 47 C.P.C. granting an application for review. 6. By a perusal of the Order 43 Rule 1(w) C.P.C. is clearly indicates that an appeal against the order could be filed if the application for review is allowed. In case of rejection of review application no miscellaneous appeal would lie under Order 43, Rule 1(w) C.P.C. but the regular appeal against the judgment and decree exparte after the rejection of injunction of review application, would lie under Order 41 C.P.C., therefore, writ petition is not maintainable against the rejection of review application. 7. The writ petition is dismissed as not maintainable. 8. All the pending applications stand disposed of.