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, Page: 336however, contended that since the impugned order of injunction appears to have been issued in exercise of the powers under Order 39 Rule 1 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 s. 151 of the Code of Civil Procedure, 1908 and allowed the application made on behalf of the defendants under Order 39 Rule 4 of the sale 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 s. 104 sub-s. (1) clause (i). Then follows sub-s. (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 s. 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 28 of 1976 (Mrs. Anjali Sengupta v. A.K Das), 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 s. 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 ??? differ from it, the only course open to me 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 s. 104(2) of the Code which in my view, bars only a Second Appeal and not a First Appeal under s. 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 s. 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 s. 104(2) applies to only to appeals against such appellate orders. That bar was never intended to apply to original orders whether pasted by the trial court or by the appellate court in the exercise of powers under s. 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 s. 104(1) as in that event, a conflict Page: 337would immediately arise between the two sub-sections (sub-ss. 1 and 2) of s. 104 and in construing s. 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 Calcutta 275 and the Allahabad Full Bench (ILR 25 Allahabad 174) which, though decisions under the Old Code. Section 588 corresponding to the present s. 104 and Order 43 Rule 1 would apply as the present Code notwithstanding the change of language in s. 104(2) which, as I shall presently show and as already held by the Allahabad High Court in its two Bench decisions 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 any present purpose.

4. Shortly stated my reasons for the above view are as follows:

Section 104(1) read with Order 43 Rule 1 makes orders mentioned in Order 43 Rule 1 appealable. This is followed by sub-s. (2) of s. 104 prescribing that no appeal would lie from any order passed in appeal under this Section, the intention being to prevent a further appeal or a second Appeal against orders made appealable under sub-s. (1). In other words, s. 104(2) forbids a Second Appeal against orders from which a First Appeal has been given by sub-s. (1). It does not prohibit a First Appeal. This was the law under the Old Code (vide ILR 26 Calcutta 275 and ILR 25 Allahabad 174 supra) and the new Code has made no charge in the legal position (vide ILR 36 Allahabad 58 and ILR 42 Allahabad page 14 supra). It is true that there has been a change in the relative legislative language in the two Codes namely, for words “orders passed in Appeal under this Section shall be final” of the Old Code (section 588) New Code has enacted “No appeal shall lie from any order passed in appeal under this section”. But a close and careful reading of the two sub-sections of s. 104 would, as I have already indicated, clearly confirms that sub-s. (2) was intended to bar only a Second Appeal from orders from which a First Appeal had been provided by sub-s. (1). This view of sub-s. (2) that it would not apply to bar a First Appeal as distinguished from a Second Appeal would be supported by two major considerations—

(1) The orders mentioned in Order 43 Rule 1 which are made appealable under that provision read with s. 104(1) may be passed either by the trial court or by the appellate court in the exercise of its powers under s. 107(2) and all such orders (including orders, passed by the appellate court as aforesaid) which are original orders would be open at least to one appeal—a First Miscellaneous Appeal—under Order 43(1) read with sub-s. (1) of s. 104, and if sub-s. (2) applied to bar a First Appeal and hit the appeal against the above original orders of the appellate court as distinguished Page: 338from appellate orders arising from original orders of the court below the appeal given by sub-s. (1) against the same would be taken away by sub-s. (2), giving rise to an anomaly and a patent incongruity between the two sub-sections, which, as a matter of prudent judicial construction, ought to be avoided. In the context of sub-s. (1) and reading the two sub-sections together the words ‘any order passed in appeal under this Section’ may well be held to refer to any order passed in appeal upon the trial courts order or in other words, the final order of the appellate court deciding or disposing of the appeal before it and it would be doing no violence to the language to hold that what the Section, read as a whole, contemplates is that, in relation to the order, appealed from under sub-s. (1), the order (any order) of the appellate court would, under sub-s. (2), be final and not open to any appeal, giving to the word ‘any a restricted meaning.

(2) The list of orders mentioned in Order 43 Rule 1 includes orders on many important matters, for example, attachment under Order 38 injunction and its violation under Order 39, Receiver under Order 40 etc. and it could not have been the intention of the legislature to prohibit even one appeal from such important orders. Indeed, as said by Lord Moulton in 40 Indian Appeal 140, at 149 in an allied, though not the some context, “no reasons can be given why orders of so important character would be excluded from the privilege of an appeal”

5. On the above considerations, would hold that sub-s. (2) of s. 104 bars only a second appeal and has no application to a first appeal.

6. In the light of what I have said above the above Goa decision and the two decisions, reported in AIR 1964 Kerala 23 and AIR 1975 Madras 3 which took a contrary view cannot be regarded es correct—they appear to be based on a misplaced emphasis on the wider connotation of the word ‘any’ in s. 104(2) not apposite in the context of sub-s. (1) and a misappreciation of the nature and character of an original order passed by the appellate court in the exercise of its powers under s. 107(2) arising out of a confusion of the same with exercise of original jurisdiction in strict and technical sense and a misreading of the scope of Older 43 Rule (1), limiting its application to orders passed by courts of original jurisdiction to the exclusion of original orders passed by the appellate court in exercise of its powers under s. 107(2) of the Code, for which there is no warrant in law, and, therefore, I respectfully differ from the said decisions as also from the Single Judge decision in the Allahabad case of Umatar Rohab v. Mahadeo Prasad (AIR 1941 All 336) cited and relied on therein as the said decision runs ??? to the Bench decision of that court (ILR 42 All 74 supra) and holds, without the least justification, that the word ‘suit’ in Order 43 Rule 1 would not include an appeal.

6A. In the premises, the impugned order issued by the lower appellate court must be held to be an appealable order and, accordingly, the Revisional application must fall. The interim order is vacated.

7. There will be no order for costs.

8. Since I have already held that the Revisional application is not maintainable, to enable the petitioners to prefer appeal in the prayer made on behalf of the petitioners the learned advocate is permitted to get back the Certified Copy of the impugned order on furnishing plain copy of the same.

Application not maintainable.