1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7872 OF 2009 Bhagubhai Nathubai Parmar & Ors. ...petitioners vs. M/s.Gala Builders ...Respondent Mr.J.R.Rane for the petitionerss Mr.Pramesh Vakil for the respondent CORAM :A.S.OKA,J. DATE : JANUARY 21, 2010 P.C. 1 Heard the learned counsel for the petitioners. The order dated 11 th January 2010 passed by this Court after hearing the learned counsel for the petitioners reads thus : The learned counsel appearing for the petitioners submits that the Appeal Bench ought not to have taken up the appeal preferred by the petitioner for hearing in as much as one of the learned Judges forming part of the bench has passed an order on obstructionst notice in the very proceedings. When a query was made by this Court as to how the appeal preferred by the petitioners was maintainable, the learned counsel appearing for the petitioner seeks time to answer the query of the Court. Hence, stand over till 21 st January 2010. 2 The aforesaid order makes it very clear that the petitioners will have to satisfy this Court as regards the maintainability of the Appeal preferred by them before the Appeal Bench of Court of Small Causes. Today, the learned counsel for the petitioners is unable to point out any statutory provision under which the Appeal preferred by the petitioners before the Appeal Bench of Court of Small Causes was maintainable. The submission 2 of the learned counsel for the petitioners is that the Appeal was maintainable as there is a violation of fundamental rights of the petitioners. He has made submission on the merits of the order dated 3 rd November 2008 passed by the learned Judge of the Small Causes Court. 3 As far as present petition is concerned, the only challenge is to the Judgment and Order dated 29 th June 2009 passed by the Appeal Bench of the Court of Small Causes. Therefore, unless the petitioners satisfy this Court that the Appeal was maintainable, it is not necessary to go into the merits of the case. There is a categorical finding recorded by the Appellate Court in the impugned order that the Appeal was not maintainable. During the course of arguments, the learned counsel for the petitioners commented that this Court is not interested in understanding the submissions on the maintainability of the Appeal. 4 An Appeal is always a creation of statute. Therefore, on 11 th January 2010 when this Writ Petition was heard, a specific query was made to the learned counsel for the petitioners as to how the Appeal preferred by the petitioners before the Appeal Bench of Court of Small Causes was maintainable. He sought time to answer the query of the Court. Today, when the Petition is called out, he is unable to point out any statutory provision under which the Appeal was maintainable. As he is unable to point out the provision under which the Appeal was maintainable, it is not necessary to consider any further submissions made by the learned counsel for the petitioners. 5 The petitioners are the legal representatives of the 3 defendant and obstructionists. In the suit filed by the respondent-original plaintiff, a decree for possession was passed. Obstructionst Notice No.36 of 2007 was taken out by the plaintiff for removal of the obstruction of the obstructionists (the petitioners herein). The said notice was made absolute by order dated 1 st November 2007. It appears that thereafter a miscellaneous notice was taken out by the plaintiff. In the notice it was contended that the warrant of possession was executed and the possession was delivered to the respondent-plaintiff on 15 th February 2008. It was stated that certain articles were found in the suit premises of which an inventory was made by the Bailiff. It was alleged by the plaintiff that the defendant did not remove the said articles. Therefore, a prayer was made in the said Miscellaneous notice which was purportedly taken out under section 51 and 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) directing the respondents to remove the said articles from the suit premises. The said notice was made absolute by order dated 3 rd November 2008. The defendants and the obstructionists were directed to remove the articles from the suit premises within a period of 15 days from the date of the said order. For challenging the said order dated 3 rd November 2008, the petitioners preferred an appeal which has been dismissed by the impugned Judgment and order. The decree for possession was already executed, and by the impugned order passed by the learned Executing Court, petitioners were directed to remove the articles from the suit premises. Obviously, the order dated 3 rd November 2008 is not a decree within meaning of section 2 (2) of the said Code or Rule 103 of Order XXI of the said Code. There is no other provision under which the Appeal is provided against the said order. Therefore, the Appellate Court was justified in holding 4 that the Appeal was not maintainable. Assuming that the fundamental rights of the petitioners have been violated by the impugned order, that is no ground to entertain the Appeal in as much as Appeal is a creation of statute. Therefore, Appellate Court was right in holding that the Appeal was not maintainable. 6 Another objection raised by the learned counsel for the petitioners was as regards the constitution of the Bench which heard the Appeal. The objection is that one of the two Judges who constituted the Bench had passed final order on Obstructionist Notice taken out by the plaintiff. It is not necessary to deal with the said aspect as the Appeal was not maintainable. It must be noted that the petitioners had raised the said objection before the Appeal Bench of Court of Small Causes which is overruled by the Bench. It is clarified that though the Petition is dismissed, this Court has not approved of the observations made by the Appeal Bench while overruling the said objection. The Appeal Bench of Court of Small Causes has gone into the merits of the Appeal which could not have been done as the Appeal itself was not maintainable. 7 This Writ Petition is not entertained only on the ground that the Appeal before the Appeal Bench of Court of Small Causes was not maintainable. There is no challenge in this Petition to the order passed by the trial Court. 8 Subject to what is observed above, Writ Petition is rejected. JUDGE