1 WA No.588/2011 04/11/2011 Shri Vinay Gandhi, learned counsel for the appellant. Shri Nikhil Pandey, learned counsel for the respondents. We have heard the learned counsel for parties at length on the issue of maintainability of Writ Appeal. O R D E R 1/ The facts in brief relevant for the purpose of deciding this preliminary objection are that CS No.59A/97 filed by respondent No.1 to 4 against respondent No.5 and 6 for possession was decreed by the trial Court by the judgment dated 8th January, 2003. The decree holder had applied for the execution of the decree and the execution was resisted by the appellant by filing an application under Order 21 R 97 of the CPC and taking the plea that an agreement for sale of the suit property was executed by the decree holder in favour of the appellant on 2/2/1987 and in pursuance thereof the appellant is in possession of the suit property. The appellant had also filed an application under Section 151 of the CPC for stay of the execution proceedings. The Executing Court, by order dated 15/2/2011, had rejected the stay application against which the appellant had preferred WP No.2205/2010 which has been dismissed by the learned Single Judge. Aggrieved with the 2 same, the present Writ Appeal has been filed. 2/ The office of this Court has raised a preliminary objection in respect of the maintainability of appeal since the Writ Petition was filed under Article 227 of the Constitution of India. 3/ Learned counsel for appellant has submitted that there is no bar in entertaining the Writ appeal arising out of the order passed in Writ Petition filed under Article 227 of the Constitution. He further submitted that since the petitioner had prayed the relief of certiorari in the Writ Petition, therefore, it was a Writ Petition under Article 226 of the Constitution and Writ Appeal is maintainable. In support of his submissions, he has relied upon the judgments of this Court as well as the Supreme Court. He has also submitted that the order passed by the learned Single Judge suffers from factual as well as the legal errors. 4/ Learned counsel for respondents has submitted that since the learned Single Judge has exercised the jurisdiction under Article 227 of the Constitution, therefore, the Writ Appeal is not maintainable. 5/ We have heard the learned counsel for parties at length and perused the record. 6/ This Writ Appeal has been filed under Section 2(1) 3 of the The Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005, which reads as under:- 2. Appeal to the Division Bench of the High Court from a Judgment or order of one Judge of the High Court made in exercise of original jurisdiction.--- (1) An appeal shall lie from a Judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench Comprising of two judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India”. 7/ According to the proviso to Section 2(1) quoted above, the Writ Appeal is not maintainable against an order passed in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 8/ In order to arrive at the conclusion as to whether the learned Single Judge has passed an order in exercise of the supervisory jurisdiction under Article 227 of the Constitution, this court is required to look into the pleadings and relief clause of the Writ Petition as well as the nature of the order passed by the learned Single Judge. In this process, the other relevant factors also need consideration which could determine the nature of jurisdiction exercised by the learned Single Judge. 9/ We have minutely perused the Writ Petition which 4 was filed by the appellant before the learned Single Judge. The Writ Petition is not only captioned as “Writ Petition under Article 227 of the Constitution of India” but it was also filed following the Rules and procedure prescribed for a Writ Petition under Article 227. 10/ Chapter 10 Rule 23 of the M.P. High Court Rules 2008 (Rules of 2008) provides for the manner and requirements for filing the Writ Petition under Article 226 of the Constitution. Chapter 10 Rule 30 deals with the Writ Petition under Article 227(1) and provides for the manner contains and procedure required there for. The Writ Petition under Article 226 is required to be filed in the format provided in Appendix 7 of the Rulers of 2008 whereas the Writ Petition under Article 227 is required to be filed under Format 9 of Rules of 2008. 11/ The appellant had filed writ petition in Format 9 prescribed for writ petition under Article 227 under the Rule of 2008 and paid the court fee accordingly. It is worth noting that as per the roster prevalent during the relevant time, the Writ Petition under Article 226 and Writ Petition under Article 226 were heard by different benches. Accordingly, the Writ Petition so filed by the appellant under Article 227 of the Constitution of India has been heard and decided by the learned 5 Single Judge hearing the Writ Petitions under Article 227 and exercising jurisdiction under Article 227. The appellant having filed the Writ Petition under Article 227 of the Constitution and having taken a chance before the learned Single Judge hearing the Writ Petitions under Article 227 and having lost there, has taken a 'U' turn and has come before this Court raising the plea that his Writ Petition was under Article 226. Such a course is not permissible. 12/ Even otherwise, we have minutely examined the contents of the Writ petition, the relief claimed therein as well as the order passed by the learned Single Judge and we are satisfied that the Writ Petition was filed by the petitioner under Article 227 of the Constitution of India and the learned Single Judge has also exercised the jurisdiction under Article 227. 13/ In view of the aforesaid, keeping in view the proviso to Section 2(1) of the Adhiniyam of 2005, we hold that the Writ Appeal filed by the appellant is not maintainable. 14/ During the course of arguments, the learned counsel for appellant has also pointed out that though the Writ Petition was against an order of rejection of stay application, but it has been treated as Writ Petition against the order rejecting the appellant's application under Order 21 Rule 97 of the CPC and that the learned Single Judge has not considered the effect of 6 the various judgments which are in favour of the appellant which have been noted in the impugned order. We are afraid, we cannot examine the merits of the matter since the Writ Appeal itself is not maintainable. Therefore, we dismiss this writ appeal with liberty to the appellant to raise these issues in the review application, if he is so advised to file such an application. 15/ The Writ Appeal is accordingly dismissed. (Shantanu Kemkar) (Prakash Shrivastava) JUDGE JUDGE VM