Smt Kamlabai Jagdambaprasad ... vs Ramesh Bhagwantrao Deshmukh
2017 Latest Caselaw 7689 Bom

                                                    1                     J-LPA-8-10.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

                    LETTERS PATENT APPEAL NO.8 OF 2010
                                    IN
                       WRIT PETITION NO.1891 OF 2009

 Smt. Kamalabai wd/o Jagdambaprasad 
 Dixit, Aged about : 73 years,
 R/o Pinki Terrace Unity Compound,
 Juhu, Mumbai.                                               ..... APPELLANT

                               ...V E R S U S...

 Ramesh s/o Bhagwantrao Deshmukh,
 Aged about : 50 years, R/o Janori,
 Presently residing at Shegaon,
 Tq. Shegaon, Distt. Buldana.                                ... RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri A. V. Bhide, Advocate for the appellant.
 Shri M. V. Mohokar, Advocate for the respondent-sole.
 -------------------------------------------------------------------------------------------
                                CORAM:-    
                                            B.P.DHARMADHIKARI &
                                             ARUN D. UPADHYE, JJ.

DATED :

28/09/2017.

ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)

1. Heard Shri Bhide, learned counsel for

appellant/original petitioner and Shri Mohokar, learned counsel for

respondent.

2. Shri Mohokar, learned counsel has relied upon the

Judgment in the case of Ram Kishan Fauji Vrs. State of Haryana and

others, reported at 2017 (5) SCC 533 to urge that the proceedings

filed before the learned Single Judge could not have been treated under

Article 226 of the Constitution of India and being only under Article

227, the present Letters Patent Appeal is not maintainable.

2 J-LPA-8-10.odt

3. Shri Bhide, learned counsel does not dispute this. He

further states that when the proceedings were filed, both the Articles

were mentioned and had this law been then in force, the appellant

could have thought of something else. He submits that today, as it is

Letters Patent Appeal and the Writ Petition is disposed of even a request

for treating it as Revision under Section 115 of the Code of Civil

Procedure, cannot be made.

4. The law on the point is well-settled. Here, the execution

proceedings filed by the appellant has been disposed of by accepting

objection raised by the respondent vide Exh.16. The said order was

questioned before the Single Judge in Writ Petition styled as one under

Articles 226 and 227 of the Constitution with specific prayer for writ of

certiorari or any other appropriate writ.

5. In the light of the law as settled by the Hon'ble Apex

Court, it is apparent that the present Letters Patent Appeal is not

therefore, maintainable. It is accordingly, rejected. No costs.

                      JUDGE                                      JUDGE

 Choulwar