1 WP3962/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3962 OF 2011 Pratibha w/o Angadrao Bade Petitioner V E R S U S Dattarao s/o Nivrutti Phad and others Respondents Mr. J.M. Murkute, Advocate for the petitioner Mr. S.G. Chapalgaonkar, Advocate for respondent No. 1 Mr. V.G. Shelke, AGP for the respondents / State CORAM : A.V. NIRGUDE, J. DATED : 1st July, 2011 ORAL ORDER : 1. Heard. Perused record. 2. This writ petition is not maintainable against the impugned order. The impugned order, against which this writ petition is filed, is in fact an order passed under Order XXXIX Rule 2-A of Code of Civil Procedure. It is not an order passed utilizing inherent powers of civil Court under Section 151 of Code of Civil Procedure. The respondent / original plaintiff probably erred in mentioning the said provision on top of the application. 3. The impugned order arose from an interim order passed on the respondent / plaintiff’s application for temporary injunction. He has filed the suit for perpetual injunction etc, and during pendency of the suit, he moved an application under Order XXXIX Rules 1 and 2 of Code of Civil Procedure for preventing the petitioner and others from disturbing use of tube well. The learned Judge of the trial Court issued an order of status quo and thereby directed the petitioner and other defendants to the suit that they should not 2 WP3962/11 disturb the respondent’s use of the tube well. Despite of this order, it seems, one of the defendants, Tahsildar, acted in such a manner that the user of the tube well was disturbed. This apparently amounted to disobedience of the order of the civil court, passed under the provisions of Order XXXIX Rules 1 and 2 of Code of Civil Procedure. The respondent / plaintiff made a grievance of this, but, as said above, he mentioned on the top of the application that he was seeking relief under Section 151 of Code of Civil Procedure. The learned Judge while passing the impugned order did not clarify specifically that he was passing the order under provisions Order XXXIX Rule 2-A of Code of Civil Procedure. At this lapse on the part of the learned Civil Judge, the petitioner / defendant is rather erroneously adviced to file this writ petition. The writ petition is not maintainable. An appeal from order is apparently maintainable against the impugned order. The petitioner may take steps accordingly. The time spent in this writ petition shall be excluded while calculating the period of limitation. In view of above, writ petition stands disposed of. ( A.V. NIRGUDE, J. ) SRM/wp/3962/11/1/7/11