GANESAN Vs. SADASIVAN
LAWS(KER)-2003-10-65
HIGH COURT OF KERALA
Decided on October 28,2003

GANESAN Appellant
VERSUS
SADASIVAN Respondents

JUDGEMENT

- (1.) This appeal is filed against the order in I.A.575/2003 in A.S.60/2003 on the file of the Sub Court, Neyyattinkara. The interlocutory application was filed for temporary injunction under O.39, Rr.1 and 2 of Code of Civil Procedure restraining the respondent from forcible eviction of the petitioner from the plaint schedule property. The suit filed by the petitioner was dismissed by the Trial Court and against the Judgment and Decree he filed appeal before the first appellate court. Pending appeal the above interlocutory application was filed for interim relief. The appellate court has declined to grant interim relief and therefore the appellant has approached this Court by way of this appeal. Learned Counsel for the respondent submitted that this appeal itself is not maintainable as the appeal is filed against an interim order passed in appeal. He relied on the decision of this Court reported in Chellappan v. Varughese ( 1963 KLT 502 ) where this Court has considered the maintainability of an appeal filed against an interlocutory order passed in C.M.A. This Court found that under S.104(2) of Code of Civil Procedure there is a clear bar of filing further appeal. This decision is followed in various other decisions of this Court. This Court also said that the power given to an appellate court under S.107 Code of Civil Procedure is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate court. It confers power on the appellate Judge not only to dispose of the appeal on its merits, but also to pass an interlocutory or incidental order deemed necessary in the circumstances of the case to maintain the status quo or to preserve the subject matter of the appeal till the disposal of the appeal, as an original court is empowered to do in the case of suits before it.
(2.) This appeal is not a similar appeal but it is against the interlocutory order passed in a regular appeal and the bar under S.104(2) of Code of Civil Procedure is not applicable. No decision of this Court is brought to my notice where this Court has held that an interlocutory order in a regular appeal is not appealable under O.43 of the Code of Civil Procedure. The Madras High Court in the decision reported in Ramaswamy v. Chinna Sithammal ( AIR 1976 Mad. 63 ) has held that in order to attract the bar under S.104(2), the appeal should be filed under S.104 of Code of Civil Procedure. If the appeal is under S.96 Code of Civil Procedure, and the order passed is otherwise appealable under O.43, the same cannot be said to be not maintainable in law. In fact the question as in this case is directly answered by the Andhra Pradesh High Court in K. Gangulappa Naidu v. K. Gangi Naidu (AIR 1982 AP 284). In that case also the application for interim injunction filed in a regular appeal was disposed of by the appellate court and a C.M.A. was filed before the High Court under O.43, R.1(r), Code of Civil Procedure. The High Court held that the appeal is maintainable. I respectfully agree with the views of the learned Judges of the Andhra Pradesh and Madras High Courts. In fact O.43 specifically provides for filing appeals against certain orders which can be passed only in first appeal. Therefore it cannot be said that in no case interlocutory orders passed in regular appeal is appealable. Therefore I find that this First Appeal from Order is maintainable.
(3.) Learned Counsel for the appellant submitted that the petitioner is being forcibly evicted from the plaint schedule property and the appellate court was not justified in declining to grant interim relief.;


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