ORDER

[1] Heard Mr. G.N. Sahewalla, the learned senior counsel, assisted by Mr. A. Kabra, the learned counsel for the petitioners. Also heard Mr. N. Alam, the learned counsel for the respondents.

[2] It appears that on last occasions, i.e., on 30.09.2026, the respondents /caveator raised the question of maintainability of the CRP (I/O). On last occasion, the learned counsel for the respondents sought some time to produce the authority in support of his submissions.

[3] Mr. N. Alam, the learned counsel for the respondents has submitted that since the present CRP (I/O) has been directed against the order dated 27.07.2026, passed in Misc. (J) Case No. 65/2026, which is an order passed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 and since the Code of Civil Procedure, 1908 prescribes that any order passed under Order 39 Rule 1 and 2 CPC is an appealable order under Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908. He submits that the petitioners ought to have preferred an appeal under the aforesaid provisions and since the order is an appealable order, it is not a proper case to invoke jurisdiction under Article 227 of the Constitution of India. In support of his submissions, the learned counsel for the respondents has cited a ruling of the Bombay High Court in the case of “Shivaji Shankar Jadhav and another Vs. Laxman Gajanan Godbole” reported in “2018 SCC OnLine Bom 148”

[4] On the other hand, Mr. G.N. Sahewalla, the learned senior counsel for the petitioners submits that since the impugned order has been passed by an appellate court in exercise of its appellate powers, hence, further appeal does not lie against such an order. He, therefore, submits that this CRP I/O) is maintainable. Alternatively, he submits that even if this court comes to a conclusion that an appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908 is maintainable, the instant CRP(I/O) may be converted into an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 as such an appeal is maintainable before this court.

[5] He submits that such a conversion may be directed by this court in exercise of its inherent power under Section 151 of the Code of Civil Procedure, 1908.

[6] In support of his submissions he has cited various rulings of this court :-

i. “Himangshu Kumar Nath Vs. On The Death Of Monmohan Nath His Heirs Mihir Kanti Nath And Others” reported in “(1991) 2 GLR 46”;

ii. “Deepa Newar Vs. Deepak Borthakur & Anr.” reported in “2017(2) GLT 921.”

[7] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also considered the submissions made by the learned counsel for both sides in support of their respective submissions.

[8] On perusal of the records, it appears that the impugned order dated 27.07.2026, though passed by the appellate court of the learned Additional Judge No. 2, Kamrup (M) has been passed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. The Code of Civil Procedure provides for an appeal against such an order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908. The appellate court while exercising its appellate jurisdiction does have all the powers of a trial court under Section 107 of the Code of Civil Procedure, 1908, however, when the Code provides for appeal against a particular kind of order, it is for the aggrieved party to avail that provision instead of this court invoking its supervisory jurisdiction in such cases.

[9] This court is in agreement with the proposition of law laid down by the Division Bench of the Bombay High Court in the case of Shivaji Shankar Jadhav and another Vs. Laxman Gajanan Godbole (supra) that when the code provides for an appeal against a particular kind of order, invoking of supervisory jurisdiction may not be a proper course of the court. As such, this court is of the considered opinion that the order wh