:1: :1: :1: FARAD CONTINUATION SHEET IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 5909 OF 2007 -------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s or directions and Registrar’s Orders Orders -------------------------------------------------------------------------- Mr.Anoop Sharma i/by. Mr.S.M.Kazi for the petitioners. Mr.S.G.Karandikar, for respondent nos.3,4,6,9A,9B & 9D. CORAM: S.C.DHARMADHIKARI, J. DATED: 10TH MARCH, 2008. P.C. P.C. P.C. : : : 1. Leave to amend. 2. Heard learned Counsel appearing for parties. Perused the impugned order. 2. The Learned Counsel appearing for the petitioner is right in his submission that if the Appeal was not maintainable, the Learned Judge of the Lower Appellate Court could not :2: :2: :2: have adjudicated upon the merits of the controversy. The Learned Judge has observed in the impugned order that the Appeal itself was not maintainable. In such circumstances, there was no reason to enter into the merits of the controversy. The finding on Point No.1 was enough to dispose off the Appeal leaving the Appellants before the lower Appellate Court with such remedy as is available in law. 3. It is not the case of the petitioners before me that their Appeal before the lower Appellate Court was maintainable. Their grievance is that if it was not maintainable all findings on the merits are totally without jurisdiction and futile. 4. There is substance in this contention. Since the Appeal was directed against the order in the Execution proceedings and only such of the orders as are specifically made Appealable can be appealed from, the instant Appeal was not maintainable. The Appeal was preferred :3: :3: :3: under Section 104 read with Order 43 of the Code of Civil Procedure. That was directed against an Order below Exhibit 54 in Regular Darkhast No. 54 of 1997. In such circumstances, the order of the lower Appellate Authority, insofar as, the finding on Point No.1 is concerned, is maintained. It is held that the Appeal preferred by the petitioner was not maintainable. However, the observations therein on merits are clearly held to be unnecessary and without any legal basis. The same shall not influence any other remedy that may be availed of, by the petitioner to challenge the order of the Executing Court. Leaving that remedy open, so also, all contentions therein, the present petition is disposed off. sd/- ********