Rajendra Nath Mittal, J. - (1.) This appeal has been filed against the order of the Additional District Judge, Gurgaon, dated Jan. 19, 1974 by Prem Bahadur Sexena.
(2.) Briefly the facts of the case are that Kumar Kamni filed a petition under section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for annulment of the marriage on the plea that the same was brought about by fraud and force. Prem Bahadur Sexena appellant had earlier filed a suit for injunction against Kumari Kamni, respondent and her fattier and brother in the Court of Munsif Pilibhit praying that her father and brother be injuncted from obstructing her from going to the appellant. An objection was taken in that suit regarding the jurisdiction of that Court. The Munsif held that he had no jurisdiction to try the suit and consequently he returned the plaint for presentation to the proper Court. The appellant has filed an appeal against the order of the Munsif to the District Judge Pilibhit which is pending in his court. Kumari Kamni respondent filed an application under Order 39, Rules 1 and 2 and section 151 of the Code of Civil Procedure (hereinafter referred to as the code) in the Court of the Additional District Judge, Gurgaon against the appellant praying that an ad-interim injunction be issued restraining him from prosecuting the appeal in the Court of District Judge, Pilibhit. The preliminary hearing issued notice to the appellant and in the meantime issued ad interim injunction as prayed for under section 151 of the Code. He observed that rules 1 and 2 of Order 39 of the Code were not applicable. The appellant filed an application in the Court for vacation of that order which was contested by the wife. He on Jan. 19, 1974. dismissed the application for vacation of the ad interim order and confirmed the order dated from the order of the Additional District Judge, Gurgaon has come up in appeal to this Court.
(3.) A preliminary objection has been raised by the learned counsel for the respondent that the order was passed by the Additional District Judge under section 151 of the Code. Therefore no appeal against the order is maintainable in this court. It is contended by the learned Counsel for the appellant that a refusal to pass an order under Rule 2 of Order 39 of the code is appealable. He further submits that an application was filed under Rules I and 2 of Order 39 and section 151 of the Code. The present case according to him falls under Rule 2 of Order 39 and the Additional District Judge has erroneously issued injunction under section 151 of the Code. He contends that if the order is to be treated under Rule 2 of Order 39, the same is appealable under Order 43 of the Code. It is not disputed that if the order is passed under Rule 2 of Order 39 of the Code, the same is appealable.;