An appeal under Order XLIII Rule 1(t) is not maintainable for a restoration application dismissed due to limitation as it does not involve a decision on the merits.

1. This appeal is under Order XLIII Rule 1(t) of the CPC, against the order of dismissal dated 19.02.2016 passed in Misc. Case No. 01/2010, filed for restoration under Order 41 Rule 19 read with Section 151 of C.P.C of Title Appeal No. 02/1997. Restoration application was filed after seven years of its dismissal, and consequently was held to be barred by limitation.

2. Brief facts leading to the present appeal is that plaintiff’s suit for partition was decreed on 30.11.1996 against which the defendant preferred Title Appeal No. 02/1997. The appeal was dismissed for default vide order dated 15.01.2003 and the restoration application was filed on 27.01.2010 after a delay of about seven years.

3. Learned Court below dismissed the restoration application for being barred by limitation which has been impugned in the instant appeal.

4. The appeal has been preferred on the ground that the suit property was in an extremist infested area and the appellants were under tremendous pressure of the extremists and, therefore, the restoration application could not be filed within time.

5. Before entering into the merit of the present appeal, matter that needs consideration is about maintainability of appeal under Order XLIII Rule 1(t) of the CPC, when the impugned order rejecting the petition for restoration under O 41 R 19, is not on merit, but for delay in preferring the restoration application and consequently being barred by limitation.

6. If the application for restoration or re-admission would have been rejected, the appellant had clear remedy under Order XLIII, Rule 1(t) of the CPC.

7. However, in the present restoration has been disallowed for refusal of application for condonation of delay. Order XLIII of the Civil Procedure Code states about the appeals from orders, which are mentioned under section 104 of the Code of Civil Procedure. Section 104(2) of the Civil Procedure Code provides that, “No appeal shall lie from any order passed in appeal under this section”. Order XLIII Rule 1(t) of the CPC reads as follows; “an order of refusal under Rule 19 of Order XLI of the CPC to readmit, or under Rule 21 of Order XLI of the CPC to rehear, an appeal”. As restoration has been refused for delay, therefore it will not come within the meaning of order, that can be challenged under Order XLIII Rule 1(t). Similar view has been taken in 2013 SCC OnLine Bombay 1381.

8. Under the circumstance, the instant miscellaneous appeal is dismissed as not maintainable. A writ petition will be maintainable and not an appeal under Order XLIII of the CPC. Appellant will be at liberty to move writ petition under Article 227 of the Constitution of India, and all contentions are kept open and to be considered on merit at the time of hearing of the writ petition.

Miscellaneous Appeal stands dismissed.

Pending I.A., if any, stands disposed of.