This is a civil revision petition filed by the defendant under section 115 of the C.P. Code against the order dated 12.04.2010 passed by Civil Judge (JD), Imphal East in Judicial Misc. Case No.2 of 2010.

2. By impugned order, the trial court rejected the application filed by the defendant under Section 5 of the Limitation Act seeking for condonation of delay of around one year and forty six days in filing the application filed under Order 9 Rule 13 of the C.R Code for setting aside of the ex-parte decree dated 12.04.2010 passed by Civil Judge (JD), Imphal East in Judicial Misc. Case No.2 of 2010 against the defendant.

3. So the short question which arises for consideration in this revision petition is whether trial court was justified in dismissing the application filed by the defendant under section 5 of the Limitation Act and thereby was justified in dismissing the application filed by the defendant under Order 9 Rule 13 of the Code as barred by limitation?

4. At the outset, I consider it apposite to state that this revision filed by the defendant under Section 115 of the Code is not maintainable because of the availability of remedy of appeal to petitioner to challenge the impugned order under Order 43 Rule (d) ibid and hence the revision under Section 115 is not maintainable in the light of bar contained in Section 115(1) and (2) ibid. 5. Section 115 and Order 43 Rule 1 (d) of the Code read as under:

"115. Revision (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court,"

(emphasis supplied)

"Order 43 Rule 1

"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) an order under Rule 10 of the Order VII returning a plaint to be presented to the proper court except where the procedure specified in Rule 10A of Order VII has been followed;

.. ..

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(d) an order under Rule 13 of Order IX rejecting an application (in case open to appeal) for an Order to set aside a decree passed ex parte;"

(emphasis supplied)

6. As observed supra, by impugned order, the trial court dismissed the application filed by the defendant under Section 5 of the Limitation Act and declined to condone the delay in filing the application under Order 9 Rule 13 ibid. This dismissal of the application also resulted in dismissal of the application filed under Order 9 Rule 13 ibid. In other words, the effect and consequence of dismissing the application for condonation of delay was that the application for setting aside of the ex-parte decree was also dismissed on the ground of limitation.

7. As would be clear from clause (d) of Order 43 Rule 1, the order dismissing the application passed under Order 9 Rule 13 ibid is appealable under Order 43 Rule l(d) ibid. It is of no consequence as to on what ground it was passed. In order to decide the question as to whether an order is appealable or not, the ground on which it was p