IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.662 OF 2008 IN NOTICE OF MOTION NO.2665 OF 2005 IN S.C. SUIT NO.3581 OF 2001 Mr.Jayant Chaganlal Shah (Deleted since deceased) 1.Arundhati Jayant Shah & Ors. ...Appellants V/s. M/s.Beauty Digest, through its partner Shri Dilip Pravindas Vora & Anr. ...Respondents ...... Mr.C.K.Tripathi for Appellants. Mr.P.S.Dani for Respondent No.2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 20, 2009. MARCH 20, 2009. MARCH 20, 2009. P.C. 1. Counsel for the Respondent No.3 (renumbered 2) Mustanshir Kasam Ali Vakharia takes preliminary objection about the maintainability of the Appeal. According to him, the order which is impugned in the Appeal is not a decree at all nor : 2 : the said order is ascribable to order passed under Section 144 of the Code of Civil Procedure. Counsel for the Appellants, however, submits that the Appellants had filed application before the lower Court which was under Section 144 of the Code of Civil Procedure and order passed thereon would naturally become an appellable order within the meaning of provisions of C.P.C. 2. The question is: whether the application presented by the Appellants was ascribable to Section 144 of the C.P.C. in the fact situation of the present case. The answer is an emphatic ‘NO’. For, it is not in dispute that the relief of putting them in possession of the suit premises is not claimed on the assertion that the decree or order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any Suit instituted for the purpose. If it is so, the provisions of Section 144 of C.P.C. have no application at all. The order passed on the subject application, at best, would be ascribable to Section 151 of the C.P.C. or for that matter, under provisions of order 40 of the C.P.C. where : 3 : the Court is required to pass the consequential order after the Suit gets terminated and the Court Receiver is required to be discharged. Such order is not an appellable order. That does not mean that the Appellants have no other remedy against such an order. Even the Counsel for the Respondent No.2 submits that the Appellants can be permitted to convert these proceedings into Writ Petition which can proceed for hearing along with companion Writ Petitions. 3. For the aforesaid reasons, preliminary objection raised on behalf of Respondent No.2 is upheld. The Appellants through Counsel prays that the Appellants be permitted to convert this appeal into Writ Petition. That however, may not be possible as the memo of Petition would be in a different format than one presented as First Appeal. 4. In the circumstances, the Appellants are permitted to withdraw this Appeal with liberty to file Writ Petition which be filed within two weeks from today. The said Writ Petition will be placed : 4 : for hearing along with companion Writ Petitions : 5 : being Writ Petition Nos.4153/2008 and 4028/2008 to be listed on 30th April 2009. A.M.KHANWILKAR, J.