1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.460 OF 1997 Baburao Mahadev Patil Petitioner versus Vasantrao Tukaramk Magdoom and others Respondents A.M.Kulkarni for petitioner. G.S.Godbole and Ms.Jai V. Kanade for respondent no.1. CORAM : A.S.OKA, J. DATE : 11th March 2010 JUDGEMENT : 1. Heard learned counsel for the petitioner and learned counsel for first respondent. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 13th January 1997 passed by the learned Additional District Judge in an appeal. By the said order the petitioner was ordered to be detained in civil prison for a period of seven days for disobeying the order of the Trial Court passed below Exhibit-23. 2. The suit was filed by the first respondent against the petitioner and others. On application for interim relief filed in the said suit at Exhibit-23, the petitioner was directed to pay salary to the first respondent-plaintiff since October 1994 as per Rules. An application was made by the first respondent at Exhibit-28 alleging that the petitioner had committed a 2 breach of the order passed below Exhibit-23. Therefore, a prayer was made for attachment of the property of the petitioner and for sale thereof as well as for detaining the petitioner in civil prison. The said application was rejected by the Trial Court. The impugned order has been passed on an appeal preferred by the first respondent against the said order below Exhibit-28. 3. After having heard learned counsel for the petitioner and the first respondent, I find that the appeal preferred by the first respondent was not competent. It appears from the prayers made in application at Exhibit-23 that the power of the Court under Rule 2A of Order XXXIX of the Code of Civil Procedure, 1908 was invoked. The appeal was presumably filed by invoking clause (r) of Rule 1 of Order XXXIX of the said Code. The Central Act provides for an appeal against an order passed under rule 2A of Order XXXIX of the said Code. However, there is Bombay Amendment effected on 1st October 1983 by which Rule 2A has been deleted from Clause (r) of Rule 1 of Order XXXIX and, therefore, an appeal will not be maintainable under Order XLIII of the said Code against an order of rejection passed on application under Rule 2A of Order XXXIX of the said Code. If on such application an order is passed by the Court directing detention in civil prison or of imposing fine, such order will become appealable under Clause (h) of section 104(1) of the said Code. Against an order rejecting the application under Rule 2A of Order XXXIX of the said Code, the appeal was not maintainable. As the appeal was not maintainable, it is not necessary to go into the merits of the impugned 3 order. The impugned order will have to be set aside on the ground that the same is illegal. 4. Hence, I pass following order :- A) The impugned order dated 13th January 1997 is quashed and set aside and Miscellaneous Civil Appeal No.180 of 1996 stands dismissed as not maintainable; B) Rule is accordingly made absolute in above terms with no order as to costs. (A.S.OKA, J.)