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V.MADHAVA RAO
K. Gangulappa Naidu – Appellant
Versus
K. Gangi Naidu – Respondent
Key Points: - The scope of appealability of interim orders under Order 39 and its relation to Section 104(1) and (2) CPC (!) - Whether an appeal lies under Order 43, Rule 1(r) versus revision under Section 115 CPC for interim injunctions issued under Order 39, Rules 1 and 2 (!) - The procedural posture when an application under Order 39, Rules 1 and 2 is disposed of by the appellate court pending a suit on appeal, and its impact on maintainability of further appeals (!) - Affirmation that where interim orders under Order 39, R.1-2 are passed by the appellate court for the first time during an appeal, such order is appealable under Order 43, Rule 1(r) and Section 104(1) CPC, and not subject to Section 104(2) CPC (!) - The decision that in the present case the interim injunction order under O.39, R.1-2 disposed by the appellate court is maintainable as an appeal under O.43, R.1(r) read with Sec.104(1) CPC (!) - The appellate court’s power to grant or vacate temporary injunction pending appeal and its limits given the trial court’s findings on title and balance of convenience (!) - The final outcome: the interim injunction (O.39)/order was vacated; appeal allowed; no costs (!)
( 1 ) THIS is a revision field against the order in C. M. P. 37 of 1981 granting interim injunction pending disposal of A. S. No. 22 of 1981 on the file of the Additional District Judge, Chittoor,
( 2 ) AT the very outset a question arose, whether it is an appeal under O. 43 or a revision under Section 115, C. P. C. that lies against an order granting interim injunction under Order 39, Rules 1 and 2, C. P. C.
( 3 ) SRI E. Subrahamanyam, the learned counsel for the respondent, submitted that no appeal lies against the instant order ant in this connection he mainly relied on the following authorities: (i) Chellappan v. K. P. Varughese (AIR 1964 Ker 23) (ii) O. C. Kalahasti v. P. C. M. Chetti (AIR 1975 Mad 3) (iii) Domlu Guno v. Yeshadabai (AIR 1978 Goa 31 ).
( 4 ) SRI V. Raghunath Reddy, the learned counsel for the petitioners, contended that an appeal is maintainable and sought permission of the Court to convert this into an appeal. He submitted that S. 104, C. P. C. makes it clear that it is only an appeal under O. 43 (I) (r) that is maintainable against orders made under O. 39, Rr. 1 and 2, C. P. C. This distinction, he submitted, seems to have been missed in the
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