: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.107 OF 2008 SECOND APPEAL NO.107 OF 2008 SECOND APPEAL NO.107 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.308 OF 2008 CIVIL APPLICATION NO.308 OF 2008 CIVIL APPLICATION NO.308 OF 2008 Sudhir Shankar More ...Appellant V/s. Chandrakant V. Mogare & Ors. ...Respondents Ms.Neeta Karnik, Advocate, for the Appellant. Mr.Piyush Shah, Advocate, for Respondent No.3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 27TH FEBRUARY, 2008. DATE : 27TH FEBRUARY, 2008. DATE : 27TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocates appearing for the parties. 2. Second Appeal is admitted on the following substantial questions of law :- (a). Whether the Appellate Court has completely misread the decision of the Apex Court in the case of Bramhadev Chaudhary V/s. Rishikesh Prasad Jaiswal [AIR 1977 SC 856]? (b). Whether the Appellate Court has completely ignored that the order passed by the Trial Court has a force of a decree and, : 2 : therefore, the Appeal ought to have been decided by treating the same as an Appeal under Section 96 of the Code of Civil Procedure, 1908? (c). Whether the Judgment of the Appellate Court is perverse? 3. Considering the fact that Appeal arises out of execution proceedings, the same is taken up for final disposal immediately. 4. The appellant is the obstructionist. The appellant raised an obstruction to the execution of the decree at the instance of the respondents by filing an application at Exhibit-106 in the execution proceedings. The said application was rejected. Appeal preferred by the appellant for challenging the order of the Trial Court has been dismissed. 5. The submission of the learned Advocate for the appellant is that the Appeal has not been decided on merits. It is submitted that the Appellate Court has completely misread the Judgment in the case of Bramhadev Chaudhary (supra). It is submitted that merits of the case made out by the appellant have not : 3 : been considered by the Appellate Court. 6. The submission of the learned Advocate for the respondents is that as the order passed by the Trial Court is on application made by the obstructionist, an Appeal was not maintainable against the said order. His submission is that the Appellate Court has not dismissed the Appeal only on technical ground but also on merits as is apparent from paragraph No.10 of the impugned Judgment. It is submitted that in view of what is held in paragraph No.10 of the Judgment, no interference is called for. 7. I have carefully considered the submissions. On plain reading of the decision of the Apex Court in the case of Bramhadev Chaudhari (supra), it appears that the Appellate Court has committed a gross error by holding that adjudication under Rule 97 of Order XXI of the said Code can be made only at the instance of the decree holder and not at the instance of the Judgment debtor or obstructionist. In fact, the Apex Court has held that if an obstructionist makes an application before he is dispossessed, all questions are required to be decided on his application by holding an inquiry as contemplated under Rule 97 of Order XXI of the said Code. Therefore, the finding : 4 : recorded by the Appellate Court on Issue No.1 is completely erroneous. 8. The order of the Trial Court passed on the application of the appellant is a speaking order running into few pages. The Appellate Court in paragraph No.10 of the Judgment has dealt with the merits of the case in a very cryptic manner without adverting to the submissions made on merits. The finding recorded in paragraph No.10 is far from being satisfactory as there is no elaborate consideration of the submissions made by the Advocates appearing for the parties. The said paragraph shows that there is no consideration of the findings recorded by the Trial Court. In sofar as issue of maintainability of the Appeal is concerned, the Appellate Court has not dealt with the same. 9. Considering the nature of the impugned Judgment and Order, only course open is to set aside the said Order and to remand the Appeal to the Appellate Court for hearing the same afresh. 10. Hence, I pass following order :- "O R D E R" "O R D E R" "O R D E R" : 5 : (a). The impugned Judgment and Order dated 5th December, 2007 is quashed and set aside and Civil Appeal No.61 of 2005 is restored to the file. (b). Parties are directed to appear before the Appellate Court on 7th April, 2008 at 11:00 a.m. (c). The Appeal shall be heard afresh in accordance with law. (d). All contentions of the parties including the contention regarding maintainability of the Appeal are expressly kept open. (e). The Appeal shall be decided as expeditiously as possible and preferably before the end of July, 2008. (f). Appeal is partly allowed in above terms. (g). Parties and Appellate Court to act : 6 : upon an authenticated copy of this order. (h). In view of this order, Civil Application No.308 of 2008 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]