-1- FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3360/2008. ( Kisan Bisaram Hatwar -versus- Mahadeo Bisaram Hatwar ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : SEPTEMBER 29, 2008. Heard Shri N.S. Talmale, Advocate for petitioner and Advocate Shri Dhumale, holding for Advocate Shri A. Parchure, for respondent. Advocate Shri Talmale, contends that appeal in relation to field property i.e. Survey no. 34 inadvertently left to be filed and when the error was discovered, effort was first made to add that property in pending appeal. As that application was found to be barred by limitation, fresh appeal itself has been filed only in relation to survey no.34. According to him, appeal ought to have been entertained and he contends that the question of maintainability of such appeal could have been examined on merits. -2- Advocate Shri Dhumale, states that entitlement of the present respondent in respect of field survey no.34 was not deliberately challenged and appeal was filed only in relation to other properties. When in execution proceeding the present petitioner received notice, he made effort to oppose that execution and for that purpose sought to amend the appeal memo. That application was rejected not only because it was found to be barred by limitation, but also on merits. He therefore, states that when that order was not challenged, filing of another appeal for very same purpose has rightly been not encouraged by the Court below. I find that by earlier order passed below Exh. 48 in Regular Civil Appeal No. 68/2006, the First Adhoc District Judge, Bhandara did not permit the present petitioner to amend the appeal memo, not only because it was found to be barred by limitation, but also, because the property did not form subject matter of appeal at all. This order was not challenged. After this order was passed on 13.09.2006 on 4.10.2006 M.J.C. was filed with prayer for condonation of delay and an independent appeal was sought to be raised to challenge the judgment and decree of trial court, in so far as it related to field survey no.34. The Court -3- below has after hearing both the sides rejected the prayer for condonation of delay. It is apparent that the appeal was earlier filed only against part of the judgment and decree and it was not filed in relation to field survey no.34. In these circumstances, particularly in view of the order passed below Exh.48, I find that effort to file fresh appeal cannot be countenanced. There is no jurisdictional error or perversity in the impugned order, Writ Petition is therefore, dismissed. No cost. JUDGE Rgd.