( 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 authorities cited.

( 5 ) BEFORE I examine the point, it is relevant to note the facts of the present case. In the instant case a suit for permanent injunction was filed. Pending the suit, O. S. No. 381/74, a petition for temporary injunction under O. 39, Rr. 1 and 2, C. P. C. was filed. An interim injunction was issued and after hearing both parties, it was made absolute. The appeal preferred by the defendant to the District Court was dismissed. Subsequently the suit came up for trial and was ultimately dismissed n 2-2-1981. Plaintiffs carried the matter in appeal (A. S. No. 22/81) to the District Court and filed C. M. P. 37/81 under O. 39, Rr. 1 and 2, C. P. C. for grant of an injunction. The learned Judge granted the injunction sought for and against those orders the present revision is filed. Now, the point for decision is, whether an appeal lie against this order or only a revision that is maintainable.

( 6 ) THE facts involved in the above three authorities cites are almost similar. There, pending disposal of suits petitions for temporary injunction were filed. Against orders in injunction petitions appeals were preferred to the District Court. Pending such appeals petitions for grant of temporary injunction were filed. Again, as against the orders made in those temporary injunction petitions by the District Court, appeals were preferred to the High Court. The point that arose before the High Courts was, whether an appeal was maintainable. It is sufficient to note the reasoning given in C. Kalahasti v. P. C. M. Chetti (AIR 1975 Mad 3) which makes a reference to Chellappan v. K. P. Varughese (AIR 1964 Ker 23 ). The learned Judge in this connection referred to Ss. 96, 104, 105 and 107 and Orders 39 and 43 of the C. P. C. The learned Judge with reference to the provisions of S. 105, C. P. C. observed:"moreover, S. 105 also makes it clear that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction. The use of the words original or appellate jurisdiction in S. 105 makes it abundantly clear that the Court can only exercise either original or appellate jurisdiction, but cannot exercise both at one and the same time. Therefore, the contention of Mr. Shanmugham that even though the order in C. M. P. 49/1973 was passed by an appellate Court, the order must nevertheless be construed to be one passed by Sub-Court in the exercise of its original jurisdiction, cannot be countenance, and it is clearly an untenable contention. It is only by virtue of the powers vested in it as an appellate Court that the Additional City Civil Court passed the order in C. M. P. 49 of 1973 and consequently, the order will squarely fall within that class of orders which are contemplated in S.