1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.804 OF 2010 Dildar Khan Sarfaraz Khan ...Petitioner vs. Iqbal Ahmed Patel & Ors. ...Respondents Mr.Anil R. Mishra for the petitioner Mr.Y.E.Mooman for respondent no.1 CORAM :A.S.OKA,J. DATE : FEBRUARY 5, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent. The petitioner is an obstructionist. The 1st respondent is the original plaintiff-decree holder in whose favour decree for possession has been passed. An application was taken out by the 1st respondent under Rule 97 of Order XXI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). The said application was in the form of an Obstructionist notice which was made absolute and the obstruction of the petitioner and others was ordered to be removed. The petitioner who is the 2nd obstructionist preferred an Appeal before the Appeal Bench of the Court of Small Causes. By the impugned order, the Appeal has been dismissed. 2 The first submission of the learned counsel for the petitioner is that earlier notice taken out under Rule 97 of Order XXI of the said Code was unconditionally withdrawn and therefore, the second notice was not maintainable. The second submission is that on legal 2 advice the petitioner did not appear in the second obstructionist notice and therefore, he could not defend the second obstructionist notice. He submitted that an opportunity deserves to be granted to the petitioner to file a reply to the obstructionist notice and to contest the said obstructionist notice. He pointed out that the declaratory suit being suit no.492 of 2002 is still pending. He submitted that the Appellate Court ought to have passed an order of remand on the ground that the petitioner was not granted an opportunity of being heard. 3 I have given carefully considered the submissions. It is not in dispute that an application was made by the petitioner and others before the executing Court for setting aside the order passed on the obstructionist notice on the ground that the same has been decided ex- parte. The application taken out in the form of notice was not entertained and the same was rejected. An appeal was preferred by some of the obstructionists including the wife and sons of the petitioner. The Appeal also failed. Thus, the earlier attempt on the part of the petitioner to get the order passed on the obstructionist notice set aside failed and therefore, in the Appeal preferred for challenging the order passed on the obstructionist notice, the prayer for remand could not be acceded to. As far as pendency of the declaratory suit is concerned, there is an observation made by the Appellate Court based on Rule 104 of Order XXI of the said Code. 4 As far as withdrawal of the earlier obstructionist notice by the 1st respondent is concerned, the law on this aspect is very clear. After withdrawal of the earlier notice, the warrant of possession was issued afresh which was obstructed by the obstructionist and 3 thereafter, second notice was taken out within the stipulated period of 30 days from the date of obstruction. Therefore, objection regarding maintainability of the obstructionist notice has been rightly rejected by the Appeal Bench of the Court of Small Causes in the light of the decision of this Court in case of Subhan Bi Sheikh Noor and another Vs. Abdul Samad Haji Abdul Raheman and others (1978 Mh.L.J. 519). 5 No case for interference is made in writ jurisdiction under Article 227 of the Constitution of India. Writ Petition is rejected. JUDGE