1. Though today, the Civil Application for stay is on board, considering the objections raised by the learned advocate appearing on behalf of the contesting respondent that the Second Appeal itself is not maintainable against the impugned order passed by the learned appellate Court under Order 41 Rule 23(a) remanding the matter to the learned trial Court, the present Second Appeal itself is taken up for hearing today.
2. It is not in dispute that by the impugned order the learned appellate Court has remanded the matter to the learned trial Court in exercise of powers under Order 41 Rule 23(A) of the Code of Civil Procedure. Under the circumstances, Shri S.N. Thakkar, learned advocate appearing on behalf of the contesting respondent has raised an objection that considering Order 43 Rule 1(u) of the Code of Civil Procedure against the order passed by the learned appellate Court in exercise of powers under Order 41 Rule 23(A) of the Code of Civil Procedure, Appeal from Order would be maintainable. Considering the above, Shri Tolia, learned advocate appearing on behalf of the appellants seeks permission to withdraw the present Second Appeal with a liberty to file an Appeal from Order challenging the impugned judgment and order passed by the learned appellate Court. He has also requested to continue the ad-interim relief granted earlier for a period of ten days so as to enable him to obtain appropriate interim order in the Appeal from Order that may be filed. However, Shri Tolia,learned advocate appearing on behalf of the appellants has submitted that if the Appeal from Order is filed now the question with respect to delay in preferring the Appeal from Order may arise and, therefore, it is requested to make suitable observation. Shri S.N. Thakkar, learned advocate appearing on behalf of the contesting respondent has stated at the bar that if the Appeal from Order is preferred within a period of two weeks from today alongwith the delay condone application, he will not raise any objection with respect to delay and the Appeal from Order be considered in accordance with law and on its own merits.
3. In view of the above, the present Second Appeal is dismissed as withdrawn with the above liberty to prefer an Appeal from Order against the impugned judgment and order as provided under Order 43 Rule 1(u) of the Code of Civil Procedure. It will be open for the appellants to submit an appropriate application to condone the delay by submitting that the appellants were prosecuting the present Second Appeal bonafidely and as stated by Shri S.N. Thakkar, learned advocate appearing on behalf of the contesting respondent if the Appeal from Order is preferred within a period of two weeks from today he shall not take any objection with respect to limitation and as and when such an application for delay condonation is submitted the same be considering accordingly so as to enable the appellants to obtain appropriate interim order in the Appeal from Order that may be filed. Ad-interim relief granted earlier in Civil Application No. 5746/2011 is hereby directed to be continued for a period of two weeks from today. However, it is observed that as and when such an application is preferred the same be considered in accordance with law and on its own merits as this Court has not expressed anything on merits in favour of either parties.
4. With this, the present Second Appeal is dismissed as withdrawn with the above liberty.
CIVIL APPLICATION No. 5746/2011 In view of dismissal of the Second Appeal, no order in the Civil Application.
(M.R.
SHAH, J.) siji Top