NARISHALA SOCIETY Vs. PARMANAND BHIMANDAS TALREJA

JUDGEMENT

(1.) The appeal has been preferred against the judgment and order passed by the Small Causes Court, Pune in Civil Appeal No. 833 of 2007.

(2.) Respondent No. 1 filed R. C. Suit No. 50 of 2001 against respondent No. 2 before the Small Causes Court which was decreed. The appeal preferred by respondent No. 2 was dismissed. A writ petition preferred against that order being Writ Petition No. 6330 of 2006 was also dismissed. Therefore, execution proceedings were in motion by the decree holder i.e. respondent No. 1 against respondent No. 2. In these execution proceedings the appellant filed an obstructionist notice under Order 21, Rule 99 of the Code of Civil procedure. That application was heard and decided by the trial Court against the present appellant. Being aggrieved by that order, the appellant preferred Civil Appeal No. 833 of 2007 which has been dismissed. Hence, the present second appeal.

(3.) Mr. Kanetkar appearing for the respondents submits that the present second appeal is not maintainable as the lower appellate Court has passed an order under section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act (in short, the Rent Act). He points out that the provisions of subsection (2) of section 29 which stipulates that no further appeal would lie against any decision in an appeal under sub-section (1). According to Mr. Kanetkar, the obstructionist notice has been decided as a suit under section 28 of the Rent Act by the Small Causes Court. He submits that the appeal preferred against the order passed by the Trial Court has been preferred under section 29 of the Rent Act before the District Court sitting in appeal under section 29 of the Rent Act. According to him, therefore, the second appeal is not maintainable. He places reliance on the judgment of a learned Single Judge of this Court in the case of Vijaykumar Vinayakrao Pathak and anr. vs. Madhukar Dinkar Chitale,2002 5 MhLJ 415, and of the Supreme Court in the case of Babulal Bhuramal and anr. vs. Nandram Shivram, 1958 AIR(SC) 677, in support of his submissions.