IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 841 OF 2009 SHRI WILLIAM D' COSTA REP. BY SHRI ROSARIO ALMEIDA AND ANR., ... Petitioners Versus SHRI AGOSTINHO FRANCISCO ANTONIO DE JESUS CORREIA AFONSO @ ANTONIO CORREIA AFONSO AND 7 ORS. ... Respondent Mr. S. S. Kakodkar, Advocate for the petitioners. Mr. A. F. Diniz, Advocate for the respondents no.1 and 2. Coram:- U. D. SALVI, J. Date:- 10th February, 2010 P.C. Heard. Perused petition and the annexures therewith. 2. It is pointed out that the Trial Court without verifying service of notice OF contempt application on the petitioner/ contemnor proceeded to punish defendants no.1 and 2 in Special Civil Suit No. 17/2004/I, pending in the Court of Additional Civil Judge Senior Division, Margao, petitioners herein as per the provisions of Order 39 Rule 2A of C.P.C. and had struk off defence of the petitioners in the said suit as per provisions of Order 39 Rule 11 of C.P.C. Learned Advocate Mr. Kakodkar, took pains for showing how the bailiff report at Exhibit 'E' annexed to the petition was not in consonance with the provisions of Order 5 Rule 19 of C.P.C. He further submitted that all this resulted in passing of the Order dated 21.11.2007 penalising the petitioners and striking off their defence without giving hearing to them. According to the learned Advocate Mr. Kakodkar, this fundamental error in the procedure denying hearing to the petitioners cast an obligation on the Trial Court to consider his application Exh. 50 dated 3.4.2008 for setting aside the Order dated 21.11.2007 and the Trial Court further erred in passing the impugned Order dated 27.11.2009 rejecting the petitioners prayer for recalling the warrant issued in execution of the Order passed on 21.11.2007 without disposing of the parent application for setting aside the Order dated 21.11.2007. 3. Learned Advocate Mr. Diniz for the respondents no.1 and 2/plaintiffs in the said suit invited attention of this Court to the Section 104 and amended provision of Order 43 Rule 1 of C.P.C. In order to show that remedy of appeal against the Order dated 21.11.2007 was available to the petitioners/defendants and yet they choose to move the application for setting aside said Order dated 3.4.2008 before the Trial Court and as such, the Order dated 21.11.2007 had gained finality. He further submitted that in view of such finality being acquired by Order dated 21.11.2007 no wrong was committed by the Trial Court in passing the impugned Order rejecting the plea for recalling the arrest warrant on 27.11.2009. Learned Advocate Mr. Diniz for the respondents no.1 and 2/plaintiffs further clarified the position of law as to the maintainability of the appeal against the order passed under the provisions of Order 39 Rule 2 A of the Court with the judgment reported in in 1994(1) Bom. C.R. 366, Harivilas Madhavprasad Ruia Versus Viraf Ardeshir Udawadia and others. 4. Learned Advocate Mr. Kakodkar, strenously urged before this Court to hold a view that the trial Court in the event of its mistake or fraud being committed on it ought to have invoked its inherent powers under C.P.C. and set aside the Order dated 21.11.2007. He placed reliance on catena of judgments reported in AIR SC 2592 Indian Bank Versus M/s Satyam Fibres(India) Pvt. Ltd., AIR 2000 SC 1165, United India Insurance Co. Ltd. Versus Rajendra Singh and others, AIR 1972 SC 1300 Swarth Mahto Versus Dharmdeo Narain Singh, AIR1998 SC 2315 G. Raj Mallaiah Versus State of Andhra Pradesh and (2003)4 SCC 557, Canara Bank and others versus Debasis Das and others. All these judicial pronouncements have no comment to offer as to whether in an situation wherein a remedy of appeal has been provided in C.P.C. against the wrong done a Civil Court has to resort to the inherent powers-the reminder to which is available under section 151 of C.P.C. No further comment is therefore necessary for dealing with this judgments. 5. Learned Advocate Mr. Kakodkar for the petitioners further submitted that no appeal has been prescribed/provided against the order passed under Order 39 Rule 2A of the C.P.C. and this view has been up held by the learned single judge of this Court sitting at Nagpur while pronouncing judgment reported in 2002(2) ALL MR 757, Vithal Shriram Kharbadkar, Versus Pandurang Irbhanji Kadu. Reading of this judgment reveals that the issue whether the Appellate Court could have decided the appeal against the Order passed by the trial Court rejecting the application Under Order 39 Rule 2A of the Code was under consideration in the said case- Vithal Shriram Kharbadkar case Supra. Section 104(h) of the Code provides for an appeal against an Order under any of the provisions of the said Code imposing fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree. In Vithal Shriram Kharbadkar, case Supra, the trial Court had rejected an application under Order 39 Rule 2-A meaning thereby there was no Order of imposing of fine or directing the arrest or detention of contemnor in the Civil prison. Rightly therefore learned brother Judge Mr. Justice P. S. Brahme, as he was then had answered the issue of maintainability of appeal against the Order passed by the Trial Court on the application under Order 39 Rule 2A of the Code. It is very clear from the judgment in Harivilas Madhavprasad Ruias case and from text of section 104 of C.P.C., that an appeal against the Order of detention of a person in civil prison passed under Order 39 Rule 2 A of the Code is maintainable. 6. Learned Advocate Mr. Diniz for the respondents/plaintiffs submits that he has doubts as to whether parent application exhibit 50 has been disposed off or not. 7. Hence the Order:- In the event the parent application exhibit 50 dated 3.4.2008 is not disposed off the same shall be disposed off on or before 28.2.2010. The execution of warrant shall stand stayed till the disposal of the parent application if not disposed of. Parties shall appear before the Civil Judge Senior Division at Margao on 15.2.2010. 8. Writ petition no. 841/2009 stands disposed off accordingly. U. D. SALVI, J. vn