JUDGMENT : R.D. Kothari, J. 1. Rule. Mr. Anal S. Shah, learned advocate waives service of Rule on behalf of respondent No. 1. 2. With the consent of learned advocates for the parties, the matter is taken up for final hearing. 3. Couple of interesting points are raised by learned advocate for the applicant in this review application. The applicant prays to review/recall the order passed by this Court on 6.11.2015 whereby, the leave to appeal was granted to the opponent No. 1 herein. It is the say of the applicant, inter-alia, that leave to appeal without issuance of notice to the other side is bad and illegal. 4. Relevant facts for consideration of this application are thus; a suit is instituted by the present applicant for specific performance in the court of learned Principal Senior Civil Judge, Kalol. Said suit is instituted against the original owner. Present opponents are the subsequent purchasers of the property in whose favour the owners have executed the sale deed. In the suit, present opponent is not made party. however, there is a reference to the sale deed in favour of the present opponents. It is not in dispute that there is a reference in the plaint to the sale deed executed in favour of present opponents. The trial court granted interim relief in favour of present applicant. Aggrieved by that order, present opponent who is not party to the suit, has moved this Court praying for leave to appeal. This Court by order dated 6.11.2015, as stated above, granted leave. Present applicant seeks recall/review of the said order. 4.1 It may also be stated that since the time to file appeal was lapsed, application for leave to appeal was filed along with application for condonation of delay. Therein, this Court has issued notice. One of the questions raised for consideration is, whether leave to appeal should be heard first or condonation of delay is to be considered first? 5. Heard learned advocates for the parties. 6. Shri Desai, learned advocate for the applicant has made two fold submissions at the time of hearing; firstly, the CPC does not provide anywhere granting leave to appeal. Application of the opponent does not mention any specific provision. It is also submitted that in absence of any specific provision in the CPC, ex-parte leave to appeal cannot be granted to the party. Application of the opponent does not mention any specific provision. It is also submitted that in absence of any specific provision in the CPC, ex-parte leave to appeal cannot be granted to the party. The other submission is there is specific provision under Order 1 Rule 10 for joining party. The opponent ought to have resorted to Order 1 Rule10 in the pending suit. If the Court rejects the application, the opponent has remedy to approach the higher forum. If the Court allows the same then, there is a remedy to apply for modifying the interim relief under Order 39 Rule 4. In view of such specific provision in the CPC, resorting to challenge the order by seeking leave to appeal is not proper and legal. 7. Shri Anal Shah, learned advocate for the opponent No. 1 has submitted that review is not maintainable. In this regard, reliance was placed on language of Rule 1 of Order 47. It was submitted that applicant has not pointed out any error apparent on the face of record either of law or of facts, hence, review is not maintainable. Otherwise also, there is no order 'against him' as required under Rule1 of Order 47, therefore also, review is not maintainable. Shri Shah has also referred to Sections 96 and104 of CPC and has submitted that these provisions do not deal with the aspect, namely, who can file an appeal. Therefore, raising objection which in substance relates to plea as to who can file appeal is misplaced. Shri Shah has tried to draw analogy from Section 92 of CPC which deals with the suit is in respect of public charity. Section 92 specifically deals with obtaining 'leave of the Court.' Shri Shah has also drawn attention to the decisions in case of Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties Private Ltd. (In Liquidation), AIR 1971 SC 374 , State of Punjab (now Haryana) & Ors. Vs. Amar Singh & Anr. AIR 1974 SC 994 , Fakir Mohamed Abdul Razak Vs. The Charity Commissioner, Bombay & Ors. AIR 1976 BOMBAY 304, Thakor Jamasherkhanji Tajkhanji & Anr. Vs. Rajgor G.V. Deceased by heirs Vinodrai Ganpatram Rajgor & Ors., 1998 (1) GLH 717 , Jayantilal Hansraj Shah & Ors. Vs. Hemakuwarben Dolatraj Dave & Ors., 1996 (1) GLH 893 . AIR 1974 SC 994 , Fakir Mohamed Abdul Razak Vs. The Charity Commissioner, Bombay & Ors. AIR 1976 BOMBAY 304, Thakor Jamasherkhanji Tajkhanji & Anr. Vs. Rajgor G.V. Deceased by heirs Vinodrai Ganpatram Rajgor & Ors., 1998 (1) GLH 717 , Jayantilal Hansraj Shah & Ors. Vs. Hemakuwarben Dolatraj Dave & Ors., 1996 (1) GLH 893 . With reference to submission on Section 92, attention was drawn to the decisions in case of Lachhman Dass Udasi (deceased by LRs) and Ors. Vs. Ranjit Singh & Ors., AIR 1987 Punjab & Haryana 108 and S.S. Bhagat & Ors. Vs. N.S. AhLuwalia, AIR 1978 Delhi 14. 8. Now, I may consider rival submissions. 9. In order dated 6.11.2015, this Court has referred to a decision in case of Jatan Kanwar Golcha (supra). Distinguishing this case law, Shri Desai has pointed out that there, the matter had arisen under the Companies Act and not under the CPC. That being so, reliance on said citation cannot be of any help to answer the question raised herein. On the other hand, Shri Shah has drawn attention to concluding part of Para.3 in that decision. It reads, thus; "It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment." 10. It is true that in the said decision, the question arose under the Companies Act. Therein, the order came to be passed without hearing the appellant in a company case. When against such order, the High Court was moved, it took the view that appellant has a remedy by way of suit after obtaining leave of the Company Judge under Section 446 of the Companies Act. It has come on record that the appellant's right is affected by the order in question passed and the appellant was not heard. In view of such fact on record, it was held that rule expressly provides for issuance of notice to the appellant and to hear the party before passing an order against the party. In the circumstances, asking the appellant to file a suit, it was held, is not correct. 11. In view of such fact on record, it was held that rule expressly provides for issuance of notice to the appellant and to hear the party before passing an order against the party. In the circumstances, asking the appellant to file a suit, it was held, is not correct. 11. Though this citation is possible to distinguish - mainly on the ground that the question raised therein under the company proceedings - the reasoning of the Supreme Court and its conclusion does help the applicant. 12. As to the State of Punjab (Now Haryana) & Ors. case (Supra), reliance was placed in Para.83 and 84, which read, thus:- "83. There is nothing in the Act or the Rules framed thereunder or in the Tenancy Act saying as to who can file an appeal or revision against the decision or order of the Collector exercising jurisdiction under Section 18. But in view of the long array of judicial decisions including that of the Financial Commissioner, there can be no doubt that the State Government or its Department can, if aggrieved, or prejudiced by such a decision, go in appeal or revision against it. 84. Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party - See Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114 . In Re B, an Infant (1958) QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235 ." 13. Relying on above, it was submitted by Shri Shah that since 1894 the Court has taken the view that a person who is not a party to a decree or an order may prefer an appeal with leave of the Court and that view is consistently followed by our Courts. 14. Relying on above, it was submitted by Shri Shah that since 1894 the Court has taken the view that a person who is not a party to a decree or an order may prefer an appeal with leave of the Court and that view is consistently followed by our Courts. 14. In Fakir Mohamed Abdul Razak's case (Supra) in Head Note-A, it is observed as under: "There is nothing in Section 96 which lays down that it is only a party to the suit who can file an appeal. The well-settled position in law appears to be that normally any party to the suit adversely affected by the decree or a transferee of the interest of such party, or even an auction purchaser may appeal." 15. In Thakor Jamasherkhanji Tajkhanji & Anr. case (Supra), the Single Judge of this Court took the view that there are various decisions in which it is held that third party can also file an appeal, if two conditions are satisfied; Firstly, such third party should be vitally and adversely affected by the judgment and decree of the court and such party should have interest in the property which is subject matter of the suit and secondly, he can file an appeal only on obtaining leave of the court. (Emphasis supplied) 16. In Jayantilal Hansraj Shah & Ors. case (Supra), this Court has observed in Head Note as under: "Persons who are competent to prefer appeal stated - a person not a party to suit may prefer appeal with leave of appellate court if he is bound by the order or is aggrieved by it or is prejudicially affected by it." 17. The above decisions help the present opponent. It can be safely concluded that person who is not a party to the proceedings can challenge the order passed by the authority/court if he is vitally affected by the order and has interest in the subject matter. As the aggrieved party has such conditional rights, submission of Shri Desai that in view of absence of any specific provisions in the CPC, third party has no right to file an appeal, cannot be accepted. It is not in dispute that CPC does not specifically provide for appeal by third party. As the aggrieved party has such conditional rights, submission of Shri Desai that in view of absence of any specific provisions in the CPC, third party has no right to file an appeal, cannot be accepted. It is not in dispute that CPC does not specifically provide for appeal by third party. In absence of such provision, no fault can be found with the opponent by urging that in the application for leave to appeal there is no reference to specific provisions of CPC. The above-referred judgments clearly recognize conditional right of third party to file an appeal. 18. Shri Desai has made an attempt to distinguish above judgments urging that absence or omission of statutory provision does not get substituted by any judgment. This specious submission is not possible to accept. 19. The question raised at the time of hearing was, whether without issuance of notice to the other side, leave to appeal can be granted or not? In the present case, there is also a question of condonation of delay. The condonation of delay aspect, I may refer little later. It is the say of Shri Desai that if the Court is satisfied at the initial stage of hearing that the order complained of needs consideration then, the Court shall issue notice to the other side. 20. Invoking Section 92 of CPC, Shri Shah has tried to draw analogy urging that in cases under Section 92, a question has arisen whether prior notice should be served to the defendant before granting leave to file a suit or not? In Lachhman Dass Udasi (deceased by LRs) and Ors.'s case (Supra), it is observed in Head Note-A as under: "No notice is necessary to be issued to the defendants prior to the granting or refusing of the leave under S.92 of the Code as at that stage it is subjective satisfaction of the Court only and thus the order is an order of administrative nature. If the notice is given to defendant prior to the order granting permission it will amount to trying the suit twice, first at the time of granting the leave and secondly after leave is granted. As a matter of fact it is the satisfaction of the Court whether the leave should be granted or not. If the notice is given to defendant prior to the order granting permission it will amount to trying the suit twice, first at the time of granting the leave and secondly after leave is granted. As a matter of fact it is the satisfaction of the Court whether the leave should be granted or not. The leave is to be granted on the allegations made in the plaint to be filed in the Court and not on seeking the averments made in written statement. Obviously, the Court does not need presence of the defendants at the time of granting of the leave and therefore, no notice to them at that stage is necessary." 21. In S.S. Bhagat and Ors.'s case (Supra), it was held in Head Note-A as under: "The Advocate General has merely to see whether there is or there is not a prima facie case that should be allowed to go to a court of law. He does not decide the rights of the person against whom the suit is intended to be filed as such a person will have full opportunity to present his case before the Court in which the suit is filed. The Court cannot enquire whether the sanctioning authority has heard the parties though it can enquire into the competency of the authority to act under Ss.92 and 93." 22. In reply, Shri Desai has contended that absence of specific provision in the CPC for filing the appeal by the third party would become very apparent and conspicuous if one reads Section 92 bearing in mind such absence of provision. It was submitted that Section 92 specifically provides for - obtaining leave of the court - such provision ought to have been there in CPC enabling the third party to file an appeal. In contrast to Section 92, no such provision for third party's right to file appeal. Hence, no right to file appeal. 23. This submission of Shri Desai is not possible to accept. As stated above and in view of above-referred case law, it is not possible to agree with the submission of Shri Desai that in absence of specific provision in CPC, the third party has no right to file an appeal. Interesting analogy drawn from Section92 does help considerably to the plea advanced by the opponent. 24. As stated above and in view of above-referred case law, it is not possible to agree with the submission of Shri Desai that in absence of specific provision in CPC, the third party has no right to file an appeal. Interesting analogy drawn from Section92 does help considerably to the plea advanced by the opponent. 24. Apart from analogy drawn on Section 92 of CPC, when third party's right to file an appeal is recognized - and this position is well settled by the case laws - in a given case it is for the Court to decide to grant leave to the aggrieved party or to issue notice to the other side, before granting leave. Issuance of prior notice cannot be advanced as a rule to be followed in each and every cases. Grant of leave does not get vitiated and cannot be challenged as a bad or illegal only on account of non-issuance of prior notice. 24.1 The other submission of Shri Desai that opponent has remedy under Order 1 Rule 10 read with Order 39 Rule 4 has also no substance. Why party should care for getting impleaded as a party when such party has other equally efficacious remedy available i.e. remedy of appeal? That apart, assuming for a moment that opponent has remedy available under Order 1 Rule 10 read with Order 39 Rule 4, bearing in mind the context in which question arose for consideration such alternate remedy cannot be advanced as 'bar' for availing other available mode. In this regard, it may also be noted that compared to appeal, remedy under Order 1 Rule 10 read with Order 39 Rule 4 is not equally efficacious remedy - if one takes liberty to apply said test. 25. Now, in case where third party seeks leave to file an appeal wherein time to file an appeal has expired, whether leave to file an appeal should be considered first or application for condonation of delay should be heard first? Shri Desai submitted that hearing of delay condonation application shall precede hearing of leave to appeal inasmuch as once leave is granted then there remains nothing for consideration of delay condonation application. On the other hand, Shri Shah submitted that prior hearing of leave to appeal is proper mode and delay condonation application cannot precede the leave to appeal application. 26. On the other hand, Shri Shah submitted that prior hearing of leave to appeal is proper mode and delay condonation application cannot precede the leave to appeal application. 26. This aspect has come up for consideration before the Kerala High Court in N. Ramchandran Pott's case - AIR 2004 kerala 323. In Head Note - A, it is stated, thus:- "In the instant case, persons not party to compromise decree filed application for leave to file appeal along with application for condonation of delay. The Court disposed of both the applications by a common order. It would have been more appropriate had he considered the petition for leave first and then dealt with the petitioner to condone the delay. The scope of enquiry in a petition for Special Leave is whether the person who seeks Special Leave is aggrieved by the decree and judgment and he is having an appealable interest. If there are prima facie materials to establish those two facts, leave has to be granted. But in a petition to condone the delay, it is not sufficient to establish that he is aggrieved by the decree or he has an appealable interest or the decree passed is null and void. In fact, to establish the fact that the decree is nullity, it is not necessary to file an appeal at all. The nullity of a decree is a point the aggrieved party can raise not only in execution of the decree, but even in parallel proceedings. The scope of enquiry under S.5 of the Limitation Act is to find out whether the person who filed the petitioner to condone the delay has established sufficient cause for not filing the appeal within time. The fact that they were unaware of the existence of a decree and there was no publication of the notice of the alleged compromise, etc. are relevant in deciding the point whether the respondents have shown sufficient cause. But, the correctness of the decree is not a matter to be gone into at the stage of considering the petition to condone the delay in filing the appeal. That can be gone into only after condoning the delay and admitting the appeal after hearing the appellant under Order XLI, Rule 11 of the Code of Civil Procedure." (Emphasis supplied) 27. I am in respectful agreement with the view taken by the Kerala High Court. That can be gone into only after condoning the delay and admitting the appeal after hearing the appellant under Order XLI, Rule 11 of the Code of Civil Procedure." (Emphasis supplied) 27. I am in respectful agreement with the view taken by the Kerala High Court. The scope and aim of both the applications are different. To ask the question that leave to appeal should decide first or delay condonation application should decide first would, in a sense, not be proper. It was rightly pointed out that since no specific and distinct provision either in CPC as to third party's right to file an appeal or in Limitation Act dealing with limitation for third party's right to file an appeal, the objection that the delay condone application should be heard first is uncalled for. In other words, absence of specific provision providing for period within which leave to file an appeal should be filed takes away basis of applicant's plea, that delay condonation application should be heard first. Unless the leave is granted, how the delay condonation application can be considered? There should be something - appeal, application and petition etc. - for which question of condonation of delay can be taken up for consideration. 28. In view of above discussion, the submissions advanced by Shri Desai to recall the order cannot be accepted. In above discussion, as I have considered the submission of Shri Shah as to maintainability of review is not considered. Accordingly, present Misc. Civil Application stands rejected. Rule is discharged. 29. Office to notify Civil Application No. 12258 of 2015 for admission hearing in due course.