-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No 51 of 2008 1. Shri Dhirajlal M.Desai and others ..Petitioners vs. 1. Narendra Bhalchandra Mantri and others ..Respondents Shri J.C.Singh i/b Shri A.D.Yadav for petitioners. Shri P.S.Dani for respondents. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 8th January, 2008 8th January, 2008 8th January, 2008 P.C. P.C. P.C. 1. The order under challenge in this petition is upon Misc.Notice No. 398 of 2007 in Execution Application No.45 of 2007 in T.E.Suit No.41/50 of 2003. Misc.Application and notice has been taken out in these proceedings is at the instance of the present petitioners who are applicants and request therein was that the decree passed in this suit on 30th August, 2005 be set aside, the plaintiffs be directed to implead the applicants as party defendants, mandatory order and direction be issued to restore possession of the respective galas of the applicants forthwith. -2- 2. A perusal of the application leaves me in no manner of doubt that what was invoked is the power of the Executing Court under Order 21 Rule 99 of the Code of Civil Procedure i.e. the provision wherein any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession and (2) where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained in the chapter which is more particularly titled as "Resistance to delivery of possession to the decree holder or purchaser". 3. It is undisputed that this Misc. Application of the present petitioners and the Misc. Notice which was taken out along therewith was placed before the Trial Judge, who was also the Executing Court. He has discharged Misc. Notice No.398 of 2007. That is rejection of the petitioners’ request which is in the above terms. -3- 4. Shri Dani, learned Counsel appearing for the decree holder invites my attention to Order 21 Rule 103 of the Code of Civil Procedure and submits that the order of the Trial Judge is appealable and appeal would lie to the Appellate Bench of Court of Small Causes at Bombay. Shri Singh states that Order 21 Rule 103 providing for orders to be treated as decrees and enabling the parties to resort to appeal, would not be attracted to the case where notice has been discharged. 5. I have seen the impugned order and prayers in the application which have been pressed before the Executing Court. The Executing Court has after framing the preliminary issue with regard to the maintainability of the application has rendered a finding that the application is not maintainable under Order 21 Rule 99 of the Code of Civil Procedure. Thus, there is a refusal to exercise necessary jurisdiction according to the present petitioners. 6. Reading this order in the light of the provisions contained under the sub-heading "Resistance to the decree holder or purchaser" I -4- have no doubt in my mind that the order is appealable. 7. Accordingly, the writ petition is not entertained because of want of equally efficacious remedy in the form of an appeal. Needless to state that the petitioners would be entitled to present the appeal and upon such appeal being presented, the Appellate Bench to take cognisance of the same in accordance with law. To enable the petitioners to institute an appeal, the ad-interim order granted by the Trial Court is continued for a period of two weeks. Needless to state that I have not gone into the rival contentions with regard to the maintainability of the Misc.Application and the merits thereof. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)