MITAL, CJ. - (1.) THIS is defendant's revision against the order of first appellate court dated 20. 5. 1993, dismissing the appeal as not maintainable against the order of trial court granting mandatory and prohibitory injunction to the plaintiff, on an application filed under Order XXXIX rules 1 and 2 read with Section 151 of Code of Civil Procedure.
(2.) IN the application under Order XXXIX Rules 1 and 2, C. P. C. , the plaintiff got mandatory injunction to remove the obstruction in the street so that the plaintiff can pass easily through that passage and prohibitory injunction not to obstruct the street in future. The trial court did not say that by that order it was giving temporary relief to the plaintiff under Order XXXIX Rules 1 and 2 and or under Section 151,c. P. C. only. Against that order of the trial court, the defendant filed an appeal before the District Court and the District Court relying on a judgment of this Court in Minerva Siksha Samiti, Bharatpur v. Smt. Mithlesh Kumari (1), held that mandatory injunction can only be granted under Section 151, C. P. C. and, since in the case in hand mandatory injunction was granted, appeal will not lie under Order XXXIII Rule i (r), C. P. C because such an order could be passed only under section 151 C. P. C. and the order passed under Section 151, C. P. C is not appealable. The order passed by the trial court in this case was both under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure. So, in case it is considered under Order XXXIX Rules 1 and 2, as the trial court granted prohibitory injunction also, therefore, that part of the order was appealable un- disputable. The problem is regarding grant of mandatory injunction. Once there is a composite application, in which one relief is claimed under Order XXXIX Rules 1 and 2 of the Code and the other under Section 151, C. P. C; such a composite order would always be appealable and all the appellate courts should make a note of this decision of mine for future guidance. The next question arises if the trial court grants an application filed under Order XXXIX Rules 1 and 2 read with Section 151, C. P. C, without saying whether it is exercising power under Order XXXIX Rules 1 and 2 or under Section 151 of the Code, then all such orders passed by the trial court where the mandatory injunction is sought or granted or temporary injunction or prohibitory injunction is granted or refused; all such orders would also be appealable because, such order is passed on a composite application filed under Order XXXIX Rules 1 and 2, may be read with Section 151,c. P. C Therefore, unless the trial court clearly states in its order that it is exercising power only under Section 151, C. P. C then alone appeal will not lie and revision will lie; otherwise in all such cases appeal will lie. This is again an instruction given for guidance to all appellate courts in the State of Rajasthan. So far as the ease referred by the appellate court is concerned, the statement of law contained therein does go to show that ordinarily mandatory injunction cannot be granted under Order XXXIX Rules 1 and 2 of the Code. This matter was considered by another Judge of this Court in Nazir Ahmad and anr. v. Ashfaq Ali (2) wherein the aforesaid decision was distinguished and it was stated that in suitable eases mandatory injunction can be granted even under Order XXXIX Rules 1 and 2 of the Code. Reference may also be made to a judgment of Indersen Israni, J. in Prabhoo Narain Khali v. Daulat Ram Verma (3), wherein also the first decision was distinguished and it was held that appeal will lie and it is wrong to say that revision will lie. The matter has been set at rest by Supreme Court in Firm Ishardass Devi Chand and anr. v. R. B. Prakash Chand and anr. (4), where in it is clearly held that once an application has been filed by a party under Order XXXIX Rules 1 and 2 read with Section 151, C. P. C. and the court does not restrict the disposal of that application by saying that it is passing the order under Section 151, C. P. C. only, appeal will lie.
(3.) IN this matter, I hold that since in this case the trial granted an order without specifying it is under one provision or the other; appeal will lie and the court below was in error in dismissing the same, as incompetent. I would like to make it further clear for all the courts in the State of Rajasthan that once an application under Order XXXIX Rules 1 arid 2 read with Sec. 151, C. P. C. is decided by a trial Judge, without specifying that he is only exercising his power under Sec. 151, C. P. C, in all such cases appeal will lie, whether the mandatory injunction has been asked for or not and that mandatory injunction is granted or not. For the reasons recorded the order of first appellate court is set aside and the appeal filed by the defendant is restored including the order passed by the appellate court staying the operation of the order of trial court. The parties though their counsel are directed to appear before the first appellate court on January 16,1994, to enable the first appellate court to dispose of the appeal on merits. . ;