1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1213 OF 2009 IN FIRST APPEAL NO. 317 OF 2008 Mrs. Shreeja Jitul Chanar ........Applicant versus Jitul Vijaychand Chanar........ Respondent. Mr. Shriram S. Kulkarni adv. for the Applicant Mr. K.K. Malpathak adv. for the respondent CORAM: A. P. DESHPANDE, J. DATED : 13th MARCH, 2009. P.C.: 1. The present application has been moved in a disposed of first appeal by the original appellant in first appeal no. 518/08 who happened to be the respondent in first appeal no.317/08. The dispute is between husband and wife in regard to the payment of maintenance. The appeal filed by the present applicant was for enhancement of the amount of maintenance whereas the appeal filed by the husband was for challenging the ex-parte decree passed by the court. The appeal came to be disposed of by an order dated 30-4-2008. While disposing of the appeal, this court acting on a statement made by the advocate for the appellant, that his client will deposit the amount of arrears of maintenance and costs, being Rs. 69,940/- passed a 2 conditional order. The court directed the husband to pay the amount within a period of six weeks from the date of the order and in the event of failure to so deposit, the appeal filed by the husband was to stand dismissed. 2. The advocate for the husband moved the same learned Judge and the earlier order dated 30-4-2008 came to be modified by an order dated 5-5-2008. The counsel for the husband informed the court that he had made a wrong statement about the arrears being in the sum of 69,940/- and that the husband was willing to deposit the amount within the stipulated period, on account of the communication gap between the advocate and the client. It was asserted that there were no arrears and the amount of maintenance was paid. By an order dated 5-5-2008 this court clarified that if the amount is already paid, then there was no question of dismissal of the first appeal filed by the husband. A further direction was issued to produce proof of the payment of the amount before the Registry on 7-6- 2008. Record reveals that the proof of payment was brought to the notice of the Registry. 3. Thereafter the wife moved the trial ocurt complaining of non-compliance of the conditional order passed by the High Court and prayed for a declaration that the husband has not complied with the order passed in the first appeal no.317/08, warranting dismissal of the appeal. The trial court adjuduicated 3 the issue as to whether the husband has committed breach of the codnition in regard to the payment of maintenance and if so, the effect of the breach. The trial court after going through the record reached a conclusion that there has been no breach of the order passed by the first appellate court and hence no question of dismissal of the appeal. Aggrieved by the order passed by the trial court, the present applicant filed a writ petition which came to be disposed of by making an observation that the petitioner will be free to file appropriate application in the first appeal. Construing the said observation, as liberty granted by the writ court, the present application has been moved. In the first place the filing of the application is wholly miscoinceived, as the issue that arises for consideration cannot be adjudicated in a disposed of first appeal. In the second place the applicant moved the trial court contending that the husband has committed breach of the order, resulting in dismissal of the appeal. That application was rejected. Hence the writ petition was filed questioning the correctness of the order passed by the trial court. After dismissal of the writ petition, the matter was not carried further to its logical end and this court has been moved in a disposed of first appeal. The legality or otherwise of the order passed by the trial court dated 13-11-2008 cannot be gone into in a disposed of first appeal under the grab of adjudicating the present application wherein a prayer is made for issuance of a writ to the trial court 4 about the dismissal of the first appeal on account of breach of the condition. The relief claimed cannot be granted in this application. In the result the application is dismissed. (A. P. DESHPANDE, J.)