1 LPA11/08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTER PATENT APPEAL NO.11 OF 2008 FROM WRIT PETITION NO.4628 OF 2007 FROM NOTICE OF MOTION NO.4546 OF 2007 IN B.C.C.SUIT NO.3519 OF 2005 Mayashankar N. Mishra ...Appellant v/s Balkrishna G. Joil and ors. ...Respondents Mr Rajiv Narula i/b M/s Jhangiani Narula and Associates for Appellant. Ms Anita Dwivedi for Respondent No.1. CORAM : D.K. DESHMUKH AND N.D. DESHPANDE JJ. DATE : 6TH DECEMBER 2010. 2 LPA11/08 P.C. :- 1] Admit. Heard finally by consent of the parties. 2] The relevant facts are that one Balkrishna Govind Joil filed a civil suit in the Bombay City Civil Court claiming a decree of specific performance of agreement dated 28th June 2004 in relation to Flat No.701,  A Wing, Anand Mangal, Jawahar Nagar, Khar (East), Mumbai 400 051. He claimed that he has entered into an agreement to purchase that flat. In the suit, he took out a notice of motion for appointment of Receiver. In the notice of motion, the Receiver was appointed. The Receiver was directed only to take formal possession. It appears that when the Receiver went to take possession, he found one Mayashankar N. Mishra was in possession. Therefore, notice of motion was taken out by the plaintiff again for taking possession from the said Mishra and appointing him and putting him in possession of the 3 LPA11/08 said flat as agent of Receiver. That notice of motion was partly allowed by the Trial Court, the Receiver was directed to obtain symbolic possession from the said Mishra and the Receiver was to appoint him as agent to be in possession of the flat. The order which was impugned in the petition was clearly relatable to the provisions of Order 40 Rule 1 of C.P.C. and therefore, in terms of provisions of Order 43 Rule 1, an appeal would lie against that order to this Court. 3] The plaintiff filed an appeal being appeal from order No.596 of 2006 challenging that order, however, when that matter came before the learned Single Judge of this Court, an objection was raised by the respondent No.2 to the maintainability of appeal and the appellant accepted that objection and withdrew the appeal with liberty to challenge the order in appropriate forum. Thereafter, writ petition was filed. That writ petition being writ petition No.4628 of 2007 was decided by the learned Single Judge of this Court by order dated 12th 4 LPA11/08 October 2007. The learned Single Judge modified the order passed by the Trial Court and directed the defendant No.1 to deposit an amount of Rs.5,00,000/- in City Civil Court. He further directed the defendant No.2, who was found in possession of the flat, to deposit an amount of Rs.5,00,000/- in the City Civil Court. The City Civil Court was directed to invest the amount of Rs.10,00,000/- to be deposited by the defendant Nos.1 and 2, during the pendency of the suit. The present appeal is filed against that order of the learned Single Judge by Mayashankar Mishra  defendant No.2. 4] The learned counsel appearing for appellant submits that the order was passed by the City Civil Court under Order 40 Rule 1 of C.P.C. in relation to the question as to who should be in possession as agent of the Receiver and therefore, the order was clearly appealable. Therefore, the writ petition was not maintainable. He pointed out that sub- section (2) of section 104 bars any further appeal from an order passed in appeal filed under section 5 LPA11/08 104. He submits that the petitioner s writ petition was not maintainable. The petitioner should have filed an appeal against the order under Order 43 Rule 1. Instead of doing that, the petitioner filed writ petition which was not maintainable. We have heard the learned counsel appearing for original plaintiff. She is not in a position to explain as to why appeal under Order 43 Rule 1 of C.P.C. Was not maintainable against the order passed by the City Civil Court. In our opinion, as the order in relation to appointment of agent of Receiver is clearly relatable to provisions of Order 40 Rule 1 of C.P.C., the order was clearly appeallable under Order 43 Rule 1. Therefore, writ petition against that order was clearly not maintainable. The appeal from order against the order of the City Civil Court would lie to this Court. Therefore, a writ petition against that order could not have been entertained. The appeal is accordingly allowed, the order impugned is set aside, however, this order will not come in the way of original plaintiff adopting appropriate proceedings. 6 LPA11/08 Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE N.D. DESHPANDE )