Bombay High Court
Bhakaram Khojaram Bishnoi vs Kiran Shivaji Sunka on 12 September, 2022
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
34-WP-7351-2022.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7351 OF 2022
Bhakaram Khojaram Bishnoi ..... Petitioner
Vs.
Kiran Shivaji Sunka ....Respondent
.....
Mr. Prashant Karande with Mr. A.J.Jadhav for the Petitioner.
Mr. Viquar Rajguru and Mahima Sharma i/by S.A.Legal,
Advocates & Associates for the Respondent.
CORAM: SANDEEP K. SHINDE, J.
DATED : SEPTEMBER 12, 2022 P.C.
1. Pending Suit, under Section 6 of the Specific Relief Act, 1963, an application moved by the plaintiff seeking order to restrain defendant from creating third party rights in the Suit Property was dismissed, on 21st April, 2022. Feeling aggrieved by the said order, plaintiff has preferred this Writ Petition.
2. Learned counsel appearing for the respondent/defendant, raised preliminary objection as to the maintainability of the Writ, in-as-much as, according to him, the impugned order is appellable under Order 43 rule 1 of the Code of Civil Procedure, 1908. In support of the contention, he relied Shivgan 1/3 ::: Uploaded on - 14/09/2022 ::: Downloaded on - 15/09/2022 18:43:33 ::: 34-WP-7351-2022.docx on the decision of this Court in the case of Smt. Rajeshree Pravin Sonawane & Ors. v. Arvind Kumar Fatechand in Appeal From Order No.850 of 2013 and decision in Civil Revision Petition No.509 of 2006 of Andhra Pradesh High Court in the case of M/s. R.K.Agarwal v. Smt. Ch. Vijaya Kumari.
3. On the other hand, Mr. Karande, learned counsel appearing for the Petitioner, relied on the decisions of this Court in the case of Raghunath R. Shingate v. Jayant Gajanan Pathak and Ors. 2011(6) Mh.L.J. 799 and Hawabi wd/o Late Suleman Haji v. Abdul Sattar Suleman Haji Ahmed Oomer and Anr. In 1995(2) Bom. C.R.551 wherein, it has been held that a decree or order, passed in the Suit under Section 6 of the Specific Relief Act are not appellable, may it interlocutory or otherwise, in terms of Section 6(3) of the Specific Relief Act, 1963.
4 Thus, contrary views that have been taken by this Court on the issue in question, let, petition be listed for hearing on the issue of maintainability of the Writ Petition.
Stand over to 7th October, 2022.
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34-WP-7351-2022.docx 5 In the meantime, parties shall maintain status-quo as of today.
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