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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.
RAJESH S. PATIL, J.
Ramrao S/o Rangnathrao Jadhav – Appellant
Versus
Laxman S/o Rangnath Jadhav – Respondent
Appeal From Order No.2 of 2022
Decided on : 13-12-2022
Appeal from Order - Maintainability of Appeal from Order - The court held that the provisions of Order 22 Rule 4(3) of the Civil Procedure Code are applicable to the present matter, and since only defendant no. 4 had died and the matter had abated only as regards said deceased defendant no.4, an Appeal from Order against the said order was not maintainable before this Court or before the District Court. The impugned order passed below Exh. 89 cannot be challenged by way of an Appeal, Civil Revision Application or Appeal from Order. The proper course of action for the applicant would be to file a Writ Petition under Article 227 of the Constitution of India.
Fact of the Case:
The Appeal from Order challenged the orders passed by the Civil Judge Senior Division, Gangakhed. The respondent raised an objection to the maintainability of the Appeal from Order, citing the provisions of Order 22 Rule 9 of Civil Procedure Code.
Finding of the Court:
The court found that the Appeal from Order was not maintainable and advised the applicant to file a Writ Petition under Article 227 of the Constitution of India.
Issues: The main issue was the maintainability of the Appeal from Order under the provisions of the Civil Procedure Code.
Ratio Decidendi: The court applied the provisions of Order 22 Rule 4(3) of the Civil Procedure Code and held that the Appeal from Order was not maintainable in the present matter.
Final Decision: The Appeal from Order stands disposed of as withdrawn with liberty to file a Writ Petition under Article 227 of the Constitution of India within a period of four weeks from the date of the judgment.
JUDGMENT :
1. This Appeal from Order challenges the orders dated 26.06.2014 and 13.12.2019 passed below Exhs. 45 and 89 by the Civil Judge Senior Division, Gangakhed.
2. At the initial stage itself, Advocate for the respondent raised an objection to the maintainability of the Appeal from Order and submitted that the present Appeal from Order is not maintainable.
Counsel for the Applicants stated that earlier he had filed a writ petition challenging the impugned orders passed by the Lower Court and the said petition was numbered as Writ Petition No. 4262 of 2020. He further showed me the order passed in the said writ petition on 17.11.2021. He submitted that on 17.11.2021 when the order was passed, he was not able to attend the said matter as he was not present in the court premises and only his colleague had attended the matter. He states that even on the said date, advocate for the respondent had objected to the maintainability of the writ petition, however, Advocate holding for the Advocate on record was not able to convince the Court about the maintainability of the writ petition and hence writ petition was permitted to be withdrawn with liberty to file ‘Appeal from Order’.
Accordingly, the present Appeal from Order has been filed.
3. As, today, an objection about maintainability of the present Appeal from Order is raised, Counsel for the Applicant has shown me the provisions of Order 22 Rule 4 and sub-rules (3) and (5) of Civil Procedure Code.
4. Advocate for the Respondent has stated that provisions of Order 22 Rule 9 of Civil Procedure Code applies to the present matter and hence the instant Appeal from Order should be preferred before the District Court.
5. I have considered the submissions advanced across the bar by both the parties. I find, the provisions of Order 22 Rule 4(3) of the Civil Procedure Code are applicable to the present matter, since only defendant no. 4 had died and the matter had abated only as regards said deceased defendant no.4. Therefore, an Appeal from Order against the said order was not maintainable before this Court or before the District Court. So far as the impugned order passed below Exh. 89 is concerned, the same cannot be challenged by way of an Appeal, Civil Revision Application or Appeal from Order. Therefore, in my opinion, the proper course of action for the applicant would be, to file a Writ Petition under Article 227 of the Constitution of India.
6. In view of above, Advocate for the Applicant seeks, on instructions, leave to withdraw the present Appeal from Order with liberty to file a Writ Petition under Article 227 of the Constitution of India.
7. Appeal from Order stands disposed of as withdrawn with liberty as prayed for.
8. Appellant may file a writ petition within a period of four (04) weeks from today.
AI
The main legal point established in the judgment is the application of the provisions of Order 22 Rule 4(3) of the Civil Procedure Code in determining the maintainability of the Appeal from Order.
The court ruled on the appealability of the order under challenge and allowed withdrawal of the petition, facilitating the filing of a proper appeal.
The court held that an appellate court should not make observations on merits if the appeal is deemed non-maintainable, to avoid influencing subsequent legal proceedings.
The alternative prayer for possession in a civil suit can impact the survival of the suit after the death of the sole defendant.
Order passed under Rule 13 of Order 9 of CPC rejecting application for an order to set aside a decree passed ex parte, appeal would lie under Order XLIII Rule 1 (d) of CPC.
The main legal point established in the judgment is that the provisions of Order 22 are meant to ensure continuation and culmination into an effective adjudication, not to foreclose an adjudication o....
The discretionary power of the court in deciding writ petitions under Article 226 of the Constitution and the exclusion of writ proceedings from the provisions of the Code of Civil Procedure.
The main legal point established in the judgment is that the provisions of Order 22 of CPC are procedural and should not curtail the substantial rights of the parties. The Court emphasized the applic....
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