1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.36 OF 2008 WITH CIVIL APPLICATION NO.29 OF 2008 IN APPEAL FROM ORDER NO.36 OF 2008 Shri Nitin Chotalal .....Appellant V/s. M/s.Dalpat Ram Bhagat Prasad and Anr. ..... Respondents Mr.N.H.Shukla, for the appellant. CORAM :P.B.MAJMUDAR, J. DATE : SEPTEMBER 02, 2009 P.C. 1. It is unfortunate that even though the appeal is not maintainable under Order 43 of Civil Procedure Code, this appeal from order is preferred by the appellant. The learned Trial Judge of the City Civil Court has merely passed an order to the effect that the hearing of the Contempt Notice of Motion No.1464 of 1976 be expedited and it is fixed for hearing on 20-12-2007. It is the aforesaid order which is challenged under Order 43 of C.P.C., by the original defendant No.1 by way of this appeal from order. The respondent No.1 herein is the original plaintiff who has instituted a suit bearing No.7930 of 1973, which is pending 2 before the City Civil Court, Bombay since 1973. It is unfortunate that suit is still pending and must be the oldest suit on the file of the learned Judge of the City Civil Court. It seems that the said suit was dismissed for default along with other pending applications. The suit was restored to the file. 2. The plaintiff thereafter, submitted an application in the said pending suit to the effect that the Court may expedite hearing of the Contempt Notice of Motion No.1464 of 1976 and till that petition is decided, the suit may not be taken up for hearing, as according to the plaintiff, contempt proceedings are required to be heard first. The learned trial Judge by the impugned order, allowed the said application and it ordered that Notice of Motion No.1464 of 1976 should be expeditiously heard, for which even the date is fixed. It is the aforesaid order which is challenged by way of this appeal from order under Order 43 of C.P.C. 3. The learned counsel for the appellant submitted that earlier Judge had rejected the prayer for hearing the said Notice of Motion on the ground that the same is disposed of. He further submitted that now the said application is not maintainable. In my view, instead of delaying the proceedings of the trial court on the said aspect, once the City Civil Court has fixed the notice of motion for hearing, it will be open to the original 3 defendants to take all available points in the said notice of motion, including the point as to whether the said notice of motion is pending or not. The learned trial judge after hearing both the sides, shall pass appropriate order in accordance with law. While disposing the Notice of Motion No.1464 of 1976, the trial court shall also verify as to whether the notice of motion is pending or not. The said aspect is left for the decision of the trial Court. Suffice to say that the proceedings are not required to be delayed and in fact this appeal is not maintainable against the impugned order. While disposing of the appeal from order, the trial court is directed to dispose of the notice of motion No.1464 of 1976 within a period of two months from today. The trial Judge may dispose of the said notice of motion after considering the arguments of both the sides and shall pass appropriate order in accordance with law. Even if the other side is delaying the proceedings, the trial court may not adjourn the notice of motion and dispose of the same without any further delay within the stipulated period. 4. Since the suit is of 1973, the trial Court is directed to dispose of the suit bearing No.7930 of 1973 within a period of three months thereafter from the disposal of the notice of motion. The Registry is directed to send a writ to the concerned Judge of the City Civil Court immediately without any further delay. 4 5. Subject to what has been stated above, the appeal from order is dismissed. 6. In view of the dismissal of the appeal from order, the Civil application No.29 of 2008 does not survive and the same is disposed of. (P.B.MAJMUDAR, J.)