1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 579 OF 2006 Dagdu s/o Annasaheb Kolkar .. APPELLANT VERSUS Bhanudas s/o Rangnath Kolkar & another .. RESPONDENTS Shri A.G. Dalal, Advocate holding for Shri V. D. Salunke, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 20th July, 2009. PER COURT : 1 Original plaintiff has approached this court raising exception to the concurrent orders passed by the courts below. 2 Suit bearing Regular Civil Suit no. 156/1982 was presented by plaintiff seeking decree of perpetual injunction against the defendant in respect of the agricultural property which he claims of his ownership. During the continuance of the suit, the parties arrived at settlement and in view of the settlement reached between the parties, initially, decree based on composition was passed by the trial court on 19-9-1999. Thereafter defendant presented application as contemplated by Order XXIII Rule 3 of the Code of Civil Procedure seeking amendments in the order passed by the trial court on the basis of compromise arrived at between the parties. Trial 2 court entertained the application and after considering the rival contentions, modified the order passed earlier on 3-1-2000. Plaintiff is aggrieved by the modification ordered by the trial court while entertaining the application presented by the defendant under Order XXIII Rule 3 of the Code of Civil Procedure. Appellate court, considering the appeal presented by the plaintiff being Regular Civil Appeal no. 59/2000 opines that the regular appeal is not entertainable against the order passed while entertaining an application under Order XXIII Rule 3 of the Code of Civil Procedure and as such, dismissed the same by judgment and decree dt. 25-8-2009. Original plaintiff is raising challenge to the orders passed by the courts below in the instant second appeal. 3 It is contended by the learned counsel for the appellant that the appellate court while entertaining the appeal could not have modified the order passed earlier as the first appellate court has directed drawing of decree. The instant second appeal is also not entertainable. It is not controverted that the application in respect of challenge to the composition arrived at between the parties can be entertained under Order XXIII Rule 3 of the Code of Civil Procedure. Appeal against order passed by the trial court while entertaining such an application is obviously not maintainable. The first appellate court was justified in refusing to entertain the appeal. Direction issued by the first appellate court in respect of drawing of decree does not make any difference as the first appeal itself was not entertainable and as such, obviously, instant second appeal also cannot be entertained. It is however made clear that the plaintiff can avail the remedy available in law for raising exception to the order passed by the trial 3 court while entertaining the application tendered by the defendant under Order XXIII Rule 3 of the Code of Civil Procedure. The instant second appeal is not entertainable. Hence dismissed. ( R. M. BORDE, J.) dyb/office/sa579.06.odt