Samir Kumar Mukherjee, J. - (1.) This Revisional Application has been adjourned for a decision on the question of maintainability of the same. The point which arises for consideration is whether the impugned order of interim injunction granted by the lower Appellate Court during the pendency of the Miscellaneous Appeal filed before it is appealable or revisable. Mr. Dey has argued, in support of the Revisional Application, that the impugned order is revisable and not appealable. He has relied on a decision reported in AIR 1975 Goa page 15. Mr. Ghosh, appearing on behalf of the contesting Opposite Party No. 1, has, however, contended that since the impugned order of injunction appears to have been issued in exercise of the powers under Order 39, Rule I of the Code of Civil Procedure, the same is appealable notwithstanding the fact that the same has been issued not by a trial court but by a court of appeal.
(2.) It appears that by the impugned order the lower Appellate Court rejected the application of the plaintiff under Order 39. Rules 1 and 2 read with section 15l of the Code of Civil Procedure, 1908 and allowed the application made on behalf of the defendants under Order 39, Rule 4 of the said Code. The ad-interim order granted initially has thus been vacated.
(3.) Orders passed under Rules 1 and 2 or Rule 4 of Order 39 of the Code are subject to an appeal in terms of Order 43, Rule 1(r) read with the provisions of section 104 sub-section (1) clause (i). Then follows sub-section (2) which provides that "No appeal shall lie from any order passed in appeal under this section". The connected Miscellaneous Appeal, which is pending before the lower Appellate Court, is undoubtedly an appeal under the provisions of section 104(1) of the Code of Civil Procedure, read with Order 43, Rule 1 or vice versa. Such an appeal would obviously be barred if the view taken in the decision cited by Mr. Dey be accepted. I am, however, unable to accept the said decision as correct in view of the unreported Bench decision of this court in F.M.A.T. No. 28 of 1976 Mrs. Anjali Sengupta v. A. K. Das Ors., decided by H. N. Sen and B.C. Ray, JJ. on 30.3.76. That decision clearly holds that an order passed by the lower Appellate Court under Order 39 of the Code is appealable. It is true that in the said Bench decision there is no reference to section 104(2) of the Code of Civil Procedure but even then, sitting singly I am bound by the said decision and if I had felt inclined to differ from it, the only course open tome would have been to refer the matter to a Division Bench for examining the propriety and correctness of the said decision. I feel, however, that the said decision is correct on principle notwithstanding non-mention of section 104(2) of the Code which in my view, bars only a Second Appeal and not a First Appeal under section 104(1) read with Order 43, Rule 1 of the Code against the Orders mentioned therein and passed either by the trial court or by the court of appeal in the exercise of its powers under section 107(2) of the Code, which expressly provides for the exercise by the Appeal Court of powers conferred on courts of Original Jurisdiction, Exercise of such powers by the Appellate Court would result in original order as distinguished from appellate orders which postulate the existence of original orders passed by a subordinate court and the bar of section 104(2) applies only to appeals against such appellate orders. That bar was never intended to apply to original orders whether passed by the trial court or by the Appellate Court in the exercise of powers under section 107(2) of the Code of Civil Procedure on the matters mentioned or included in Order 43, Rule 1 and expressly made appealable under that provision read with section 104(1) as in that event, a conflict would immediately arise between the two sub-sections (sub-sections 1 and 2) of section 104 and in construing section 104(2) this aspect should not be overlooked I am supported in this view by the earlier Bench decision of this Court reported in ILR 26 Cal 275 and she Allahabad Full Bench in ILR 25 Allahabad 174 which, though decisions under the Old Code sec. 588 corresponding to the present sec. 104 and Order 43, Rule 1 would apply as the present Code notwithstanding the change of language in section 104(2) which, as I shall presently show and as already held by the Allahabad High Court in its two Bench decisions in ILR 36 Allahabad page 58 and ILR 42 Allahabad page 74 has not altered the law on the point. Indeed the reasons given in, ILR 26 Calcutta 275 decided under the 1882 Code apply equally and with full force to the Code of 1908 and I have no hesitation in adopting the same for my present purpose.;