1 ao1060.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 1060 of 2011 WITH Civil Application No. 1414 of 2011 in AO NO. 1060/2011 Rajendra Satish Sabnis ....Appellant v/s. Anant Nilkanth Sabnis & anr. ....Respondents Mr. H.T. Pawar for the appellant. Mr. Uday Warunjikar with Manish Upadhye for the respondents. CORAM: R.M. BORDE, J. 14th October, 2011 PC: While entertaining an application tendered by the defendant seeking a direction to the plaintiff to deposit the amount, the learned Judge of the City Civil Court passed the following order: “ Application Ex-13 stands allowed. Plaintiff is directed to approach Court Receiver for completing formalities of execution of fresh agency agreement within two weeks from today and thereafter within next four weeks he has to deposit entire outstanding royalty amount with the Court Receiver. Plaintiff is directed to continue to pay royalty amount per month as per earlier arrangement.” 2. During the earlier round of litigation, this Court passed the following interim order in Appeal from Order No. 1101/2004. “Hence Civil Application is disposed of by passing the following order: 2 ao1060.11.sxw i) The Court Receiver, High Court, Bombay will permit the parties to this Appeal to offer their bids and will appoint the highest bidder as an agent of the Court Receiver subject to execution of usual agency agreement and subject to payment of usual charges of the Court Receiver. ii) The Court Receiver will complete the process within six weeks from today. iii) The agent appointed by the Court Receiver will continue to act as an agent of the Court Receiver till the final disposal of the Appeal.” 3. The Appeal from Order came up for consideration before this Court and this Court while disposing of the Appeal on 7th May, 2009 passed following order: “ The appeal is allowed. The impugned judgment and decree dated 25th September, 2008 passed by the City Civil and Sessions Court in Short Causes Suit No. 596 of 2004 is set aside. The matter is remanded to the Bombay City Civil and Sessions Court for fresh hearing. The interim order of appointment of Court Receiver, High Court Bombay of the suit premises and the appointment of the respondent as agent of the Court Receiver on payment of royalty as fixed, is also revived. Since, considering the fact that the impugned decree was in effect an ex-parte decree which is being set aside by this order, the respondent is required to be compensated by way of costs. The appellants shall pay costs quantified at Rs. 5,000/- (Rs. Five Thousand Only) to the respondent within a period of two weeks from today. The Bombay City Civil and Sessions Court to dispose off the suit expeditiously and as early as possible.” 4. Thus in view of the directions issued by this Court, while remitting the 3 ao1060.11.sxw matter back to the trial Court, the interim order of appointment of Court Receiver, High Court, Bombay in respect of the suit premises, and the appointment of respondent as an agent of the Court Receiver on payment of royalty fees gets revived. 5. In view of the order passed by the High Court, an application was tendered by the defendant requesting the Court to direct the plaintiff to deposit the amount of Rs. 11,500/- per month towards monthly royalty with effect from October 2008 as the plaintiff had failed to deposit the same. Considering the application tendered by the defendant, the Court has passed the aforesaid order on 30th May, 2011. 6. According to the appellant the order passed by the trial Court and the application tendered comes within the purview of Order 39 Rule 1 and 2. On perusal of Order 39 Rule 1 and 2, I am of the opinion that provisions of Rule 1 and 2 are not attracted in the instant matter. At best the application as well as the impugned order can be said to have been passed by taking recourse to inherent powers of the Civil Court exercisable under Section 151 of the Code of Civil Procedure. 7. The Counsel appearing for appellant seeks to place reliance on the Judgment of this Court in the matter of Rajendraprasad R. Singh v/s. Municipal Corporation of Greater Bombay (AIR 2003 Bombay 392), A. Venkatasubbiah Naidu vs. S. Chellappan (AIR 2000 SC 3032) and the judgment of Sikkim High Court in the matter of Ashok Tshering Lama vs. Tshering Wangdi (AIR 1982 Sikkim 20). 8. On consideration of the judgments cited at par, I am of the opinion that the facts giving rise to judgments are totally different and the ratio laid down 4 ao1060.11.sxw by the High Court as well as Apex Court is not applicable to the facts of the present case. The Appeal from Order is not entertainable and, therefore, stands dismissed. 9. In view of dismissal of Appeal from Order, pending civil application does not survive and stands disposed of. (R.M.BORDE, J)