1 wp 9318.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9318 OF 2011 1. Ramkrishna S/o Keshav Nagargoje, Age : 75 Years, Occu. : Service & Agril., R/o Jaywantnagar, Tq. Bhoom, Dist. Osmanabad. 2. Vishnu S/o Ramkrishna Nagargoje, Age : 53 Years, Occu. : Service & Agril., R/o As above. .. Petitioners Versus 1. Shivaji S/o Krishna Nagargoje, Age : 55 Years, Occu. : Agril., R/o Jaywantnagar, Tq. Bhoom, Dist. Osmanabad. 2. Popat S/o Digambar Nagargoje, Age : 60 Years, Occu. : Agril., R/o As above. .. Respondents (The Respondent No. 2 deleted as per Court's order dated 07.12.2011) Shri S. Y. Mahajan, Advocate for the Petitioner. Shri S. D. Hivrekar, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 07TH DECEMBER, 2011. 2 wp 9318.11 ORAL JUDGMENT : . At the outset, the learned counsel for petitioners seeks leave to delete the respondent No. 2 on the ground that he was defendant and the respondent No. 1 is only contesting party. Leave to delete the respondent No. 2 is granted at the risk of petitioners. 2. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 3. The petitioners impugn the order passed on an application U/O 41 Rule 27 of the Code of Civil Procedure by the District Court. Shri Mahajan, the learned counsel submits that the Court below has not properly considered the provisions of Order 41 Rule 27 of the C. P. C. in its correct perspective. The learned counsel further contends that the said application should have been considered along with the appeal. 4. Shri Hiwrekar, the learned counsel for the respondent No. 1 submits that the Court below has rightly considered all the facts and circumstances and was satisfied that the ingredients of Order 41 Rule 27 are not satisfied and has rightly rejected the same. The learned counsel relies on the judgment of Apex Court 3 wp 9318.11 in a case of Mahavir Singh and others Vs. Naresh Chandra and another reported in 2000 AIR SCW 4000. The learned counsel submits that no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. 5. Though the learned counsel for respective parties argued on merits of the matter, I am not inclined to consider the same at this stage. The Apex Court in a case of Mallyalam Plantation Vs. State of Keralla reported in 2011 AIR SCW 264 and in a case of State of Rajstan Vs. T. N. Sahani and others reported in (2001) 10 S.C.C. 619 has held that the application U/O 41 Rule 27 has to be considered along with the appeal. 6. In the light of above, the impugned order is quashed and set aside and the application filed by the petitioner U/O 41 Rule 27 shall be decided along with the appeal. Rule is made absolute in above terms, however, with no order as to costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11