Abdul Nazeer, J

The unsuccessful defendants have filed this appeal challenging the judgment and decree in O.S. No.1068/1997 dated 23.08.2007 passed by the 11th Addl. City Civil Judge, Bangalore City. The respondent was the plaintiff in the suit.

2. The plaintiff had filed the aforesaid suit for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. Along with the plaint, he had filed an application under Order 39 Rules 1 and 2 of Code of Civil Procedure for grant of temporary injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property pending disposal of the suit.

3. It is the case of the plaintiff that the court below had passed the order on 06.02.1997 directing the parties to maintain status quo regarding possession of the suit schedule property. After service of the notice, the defendants have filed their written statement and I.A.2 under Order 39 Rule 2A of the Code of Civil Procedure requesting the court below to take appropriate action against the plaintiff for violating the interim order dated 06.02.1997. The court below has passed a common order decreeing the suit and dismissing I.A.No.2 filed by the defendants.

4. In this appeal, the defendants have not only challenged the said judgment and decree, but also the dismissal of the application IA.No.2. The reliefs sought for by the plaintiff in the appeal is as under:

“Wherefore, the appellants most respectfully pray that this Hon’ble Court may be pleased to call for the entire records and set aside the judgement and decree dated 23.08.2007 passed in O.S. No.1068/I997 by the Xl Addl. City Civil Judge, Bangalore City (CCH-8), and dismiss the suit of the plaintiff with exemplary costs and allow the interlocutory applications filed under Order XXXIX Rule 2A r/w. sec. 151 of CPC filed by the defendants and punish the plaintiff accordingly, in the interest of justice and equity.”

5. The Registry has raised an objection with regard to the relief sought for in the appeal. The Registry is of the opinion that the appellant cannot challenge the order on IA.No.2 in this appeal. I have heard the learned Counsel for the parties in this regard.

6. Learned Counsel for the appellants/defendants would contend that the defendants have filed the application IA.2 for initiating action against the plaintiff for violation of the interim order dated 6.2.1991. The court below ought to have decided the said application before deciding the suit on merits. The court below has erred while clubbing the said application along with the main. It is further contended that since the dismissal of the application affects the decision of the case, the same can be urged in the appeal filed under Section 96 of the CPC having regard to Section 105 of the CPC.

7. On the other hand, learned Counsel appearing for the respondent would contend that the right of appeal is a creature of the statute. The dismissal of the application filed under Order 39 Rule 2A of the CPC by the appellants does not affect the decision of the case on merits. Therefore, they cannot challenge the dismissal of the said application along with the appeal filed under Section 96 of the CPC. The appellants have a separate remedy of filing of the appeal challenging the order on I.A.No.2 under Order 43 Rule 1 (r) of the CPC. They have to file a separate appeal challenging the dismissal of I.A.No.2.

8. Having heard learned Counsel for the parties, the question that arises for consideration is, whether a party aggrieved by the dismissal of the application under Order 39 Rule 2A of the CPC can challenge the same in an appeal filed under Section 96 of the CPC against the original decree without recourse to a separate appeal as provided under Order 43 Rule 1(r) of the CPC.

9. Sub-section (1) of Section 105 of the CPC states that save as otherwise expressly provided, no appeal shall lie from any o