Appeal against rejection of notice motion in civil suit dismissed as untenable for non-statutory appealability under CPC and inadmissibility of revision under Section 115 CPC.
Appeal and Civil Application No. 213 of 2010 dismissed as untenable and non-appealable order.
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1 AOG-149.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.149 OF 2010
WITH
CIVIL APPLICATION NO.213 OF 2010
IN
APPEAL FROM ORDER NO.149 OF 2010
Smt. Kamrunisa Salim Umar
Ali Shaikh.... Appellant
Vs.
Salim R. Shaikh & Anr..... Respondents
None for the Appellant.
Ms L.K. Bulchandani for Respondent
No.1.
CORAM: R.C. CHAVAN, J.
DATED: AUGUST 17, 2010
P.C:
None for the appellant. Heard the
learned counsel for respondent No.1.
This appeal is directed against the
order passed by the learned Judge, City Civil
Court on Notice of Motion No.380 of 2009 in
S.C. Suit No.5536 of 2006. By this notice of
motion, the appellant had prayed that the order
passed by the learned Judge presumably
2 AOG-149.10
directing that the suit should proceed without
the written statement should be set aside and
the appellant be permitted to file reply to the
notice of motion and the written statement in
the suit. This notice of motion was rejected by
the learned trial Judge by the impugned order.
This order is not an appealable order as it is
not enumerated in any of the clauses of Order
43, Rule 1 of the CPC and therefore this appeal
is not tenable. The order being interlocutory,
in any case, even a revision would not lie in
view of Section 115 of the CPC. The appeal is
therefore dismissed as untenable.
In view of the above, Civil
Application No.213 of 2010 also stands
dismissed.
2 issues framed by the court
Whether an appeal lies against an interlocutory order rejecting a notice of motion to set aside an order directing suit proceed without written statement.
Whether a revision would lie under Section 115 of the CPC against such an interlocutory order.
2 provisions across 1 enactments
Smt. Kamrunisa Salim Umar
Salim R. Shaikh
R.C. CHAVAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court