Judgment

SIKRI, J.: This appeal by special leave arises out of the order dated July 20, 1967, of Sub-Judge,, Amritsar, dismissing an application under O. XXXIX Rr.1 and 2, C. P. C. and S. 151, C. P. C. filed by the appellants for grant of a temporary injunction till the disposal of the suit brought by the appellants. The appellants filed an appeal against that order to the District Judge, Amritsar, who upheld the preliminary objection of the respondents that no appeal lay against that order on the ground that the order was passed under Section 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2. The High Court dismissed the revision filed by the appellants in limine. The appellants having obtained special leave the matter is before us.

2. The relevant facts may be shortly stated. Firm Ishar Das Devi Chand and its two partners Devi Chand and Manohar Lal, brought a suit for a permanent injunction restraining R. B. Prakash Chand, respondent before us, from taking possession of the demised premises, namely. No. 1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the respondent against the appellants and one Shri Ishar Das, as per Rent Controller s order dated February 22, 1967. It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had executed a rent note, dated May 1, 1948, in favour of the respondent. On February 22, 1967, the Rent Controller passed an order of ejectment against the firm Tara Chand Ishar Das and Shri Ishar Das.

3. It appears that in the eviction application filed by the respondent the appellants had filed an application under Section 4 of the East Punjab Urban Rent Restriction Act, 1949, which was dismissed. In that application an issue was raised as to whether any relationship of landlord and tenant existed between the appellants and the respondent.

4. It was contended before the learned Sub-Judge that the respondent had accepted payment of three cheques, one on March 13, 1963, for Rs. 1,175, second on April 2, 1964, for Rs. 1,875, and the third cheque on June 17, 1965, for Rs. 1,500. According to the appellants, this acceptance of the rent made them tenants under the respondent.

5. The learned Sub-Judge went into these facts and came to the conclusion that the appellants had not made out a prima facie case. According to the learned Sub-Judge, even if the payment had been received, as alleged by the appellants, then it would not mean that the landlord accepted the occupiers of the premises as his tenants. Following Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh Bha 95 an Abdul Hamid Khan v. Tridip Kumar Chandra, AIR 1953 Assam 104 he held that the appellants were sub-tenants, and that the liability to be ejected in execution of a valid order could not be said to be an "injury" within Order XXXIX, Rule 2. The Trial Court thought that the appellants could have other efficacious remedies to obstruct possession under the provisions of Civil Procedure Code. According to the Trial Court, however, unless the ejectment order was set aside its execution could not be an "injury" as contemplated by law.

6. It seems to us that this order dated July 20, 1067, was clearly appealable under Order XLIII, Rule 1, Civil Procedure Code. Order XLIII inter alia provides:

"Order XLIII, Rule 1. An appeal shall lie from the following orders under the provisions of Section 104, namely:

.... .... .... .... .... .... ....

(r) an order under Rule 1, Rule 2, Rule 4 or Rule 10, of Order XXXIX."

7. It is common ground that the appellants filed an application under Order XXXIX, Rules 1 and 2, and Section 151, C. P. C. The learned Sub-Judge had to consider whether this application was competent or not competent under R. 2, of Order XXXIX. In deciding that no such application lay under Order XXXIX, Rule 2 on the ground that what the appellants were complaining of was not an injury withing Order XXXIX, Rule 2 he was passing an order under O. XXXIX, R. 2 itself. In appeal the appellants