The aggrieved person must move the trial court under rule 4 of order 39 of the code in the first instance if the appeal is from an ex parte interim order of temporary injunction granted under rule 1 or 2 of order 39.

( 1 ) THE appellants are the defendants in o. s. no. 10169 of 1994 on the file of the viith additional city civil judge, bangalore. They are questioning the grant of ad interim order of mandatory injunction granted against them to conduct the election in accordance with annexure d.

( 2 ) WHEN this appeal came up for admission, Sri s. Shekharashetty, learned advocate who represented the respondent before the trial court made his appearance. At the initial stage, the maintainability of the appeal is questioned by the respondent and therefore the learned advocates are permitted to make their representation only with regard to maintainability of appeal before considering the case for admission.

( 3 ) FEW facts are necessary and they are as follows:the respondent filed a suit for judgment and decree against the appellants for a declaration that annexure b and f are null and void and issued without any jurisdiction and for a permanent injunction restraining the appellants from postponing the election for the central executive committee from 27-3-1994 to any other date. La. 1 under order 39, Rules 1 and 2 read with section 151, cpc was filed for an order of temporary injunction restraining the appellants from postponing the election and la. 2 on the similar provision of law filed for an ad interim order of mandatory injunction to conduct the election on 27-3-1994.

( 4 ) THE learned trial court on the basis of the materials placedbefore it considered that a notice under order 39, rule 1 or 2 is not necessary and therefore it passed the impugned order on la. 2 and also another order as prayed under la. 1. The appellants have filed this appeal confining themselves to the order passed on la. 2.

( 5 ) WITH regard to maintainability of the appeal under order43, rule l (r) of cpc, the law is well-settled in parijatha and another v kamalaksha nayak and others, rendered by division bench of this court. The law thus enunciated still holds the field. The conclusion is to be found at para 15 of the judgment:"for the foregoing reasons, we hold that order 43, rule 1 (r) of the code does not allow the filing of the appeal from an ex parte interim order of temporary injunction granted under rule 1 or 2 of order 39, but the remedy of the aggrieved person is to move the trial court under rule 4 of order 39 of the code in the first instance. We further hold that even a stranger to the suit or proceeding can maintain such an application. We hereby overrule the decisions of single judge, taking a view in favour of the permissibility of an appeal against an interim ex parte order of temporary injunction. "

( 6 ) SRI c. b. Sri nivasan, the learned advocate for theappellants has absolutely no quarrel with the law being laid down on this point, but the contention appears to be that since the order of the trial court is in the nature of ad interim mandatory injunction, the law laid down in parijatha's case, (supra) is distinguishable. The learned counsel has mainly relied on chapter 8 of the Specific Relief Act, which deals with perpetual injunctions and mandatory injunctions. According to the learned advocate, the general nature of injunction having been dealt in section 36, the nature of the perpetual injunction has been described under section 37, sub-clause (2 ). The issue of ad interim mandatory injunction is to be viewed in a different way and therefore the appeal is maintainable;

( 7 ) IN parijatha's case, (supra) the learned division bench hasdealt with the matter extensively by referring to the judgments of various high courts on these points and gave a detailed reason for approaching the court which passes an ad interim order. It is further stressed that if the said view is not adopted there will not be any consistency. Hence the parties will have to approach the courts which passed ad interim order whenever ad interim order of temporary injunction is passed. The parties have to approach the trial court under order 39, rule 4 and onl