1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8716 OF 2007 Sandeep S. Karnavat .. Petitioner Versus Mahipal S. Jain .. Respondent Mr.Shriram Kulkarni for petitioner Mr.K.K.Malpathak for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th March 2008 P.C. . A preliminary objection is raised to the maintainability of this petition by Mr.Malpathak. His contention is that the order passed by the Dist.Judge - 4, Thane in Civil Appeal No.129 of 2 2006 has been passed in an appeal which was directed against the order dated 5th August 2006 in Misc.Application No.246 of 2003. This application was moved by the decree holder in Regular Darkhast No.73 of 2002 for removal of obstruction. Thus, the jurisdiction of the Court under Order 21 Rule 97 of C.P.C. was invoked. Against that decision, a civil appeal was entertained and treated as such. By virtue of the provisions of Order 21 Rule 104 of the C.P.C., the impugned judgement partakes character of decree and therefore the remedy of petitioner is to file an appeal. Time was sought by petitioner to consider this objection. After the matter was placed today, in all fairness, Mr.Kulkarni does not dispute that the remedy of the petitioner would be to file second appeal. However, his apprehension is that the petitioner had filed an application in Regular Civil Suit No.23 of 1999 so also an independent proceeding to question consent decree. That compromise/ 3 consent decree is something which cannot be made subject matter of the substantive second appeal. 2. To my mind, the remedy to challenge the judgement in Civil Appeal No.129 of 2006 is by filing second appeal. As far as the compromise decree is concerned, I had recorded the statement of Mr.Kulkarni on 6th December 2007 that the petitioner had filed independent civil suit but the Civil Court held that these suits are not maintainable. It would be open for the petitioner to impugn even that order by instituting appropriate proceedings and all contentions of both sides insofar as the second appeal and compromise decree are kept open. With the above liberty, the petition is allowed to be withdrawn. The statement made by Mr.Malpathak that the decree holder will not execute the decree for a period of three weeks from today to enable petitioner to file above proceedings, is accepted. 4 (S.C.Dharmadhikari, J)