Point of law : An order of rejection of application which application is made under Order XXXIX Rule 2-A of CPC would also be an order made under Order XXXIX Rule 2-A of CPC- As such appeal would lie against said order under Order XLIII Rule 1(r) of CPC-

JUDGMENT :

plaintiff in O-S-No-306/2007 in Court of learned Senior Civil Judge at Indi (henceforth for brevity referred to as 'trial Court') has filed this appeal challenging order dated 11-06-2015 passed by Trial Court wherein his interlocutory application bearing I-A-No-XVIII filed under Order XXXIX Rule 2-A of Code of Civil Procedure 1908 (henceforth for brevity referred to as 'CPC') was rejected-

2- present appellant has filed a suit in O-S-No-306/2007 in trial Court against present respondents and others for relief of partition and separate possession- suit properties inter alia was also included land properties in different survey numbers which according to plaintiff have been formed into several plots and were sold to different persons by defendant No-1- During pendency of said original suit present appellant as plaintiff on 12-01-2012 filed I-A-No-XVI for relief injunction restraining defendants from undertaking any construction and development works in suit schedule properties- said I-A-No-XVI came to be allowed by order of trial Court dated 02-08-2012- Defendant No-1 filed an application on 19-03-2013 in trial Court under Order XXXIX Rule 4 of CPC for recalling order passed on I-A-No-XVI- trial Court after hearing both side allowed said application i-e- I-A-No-XVII on 10-06-2015 and recalled order passed on I-A-No-XVI- In meantime on 05-04-2014 appellant/plaintiff filed application i-e- I-A-No-XVIII under Order XXXIX Rule 2-A r/w Section 151 of CPC in trial Court requesting to detain defendant Nos-4 16 and 47 in a civil prison and to attach their properties and to sell them in public auction for payment of compensation for disobedience of injunction order passed on I-A-No-XVI on 02-08-2012- respondents filed their objections to said I-A-No-XVIII- trial Court after hearing both side vide its order dated 11-06-2015 rejected said I-A-No-XVIII filed by plaintiff under Order XXXIX Rule 2-A of CPC-

3- Aggrieved by same plaintiff in trial Court has preferred present appeal under Order XLIII rule 1(r) of CPC-

4- respondents are being represented by their counsel-

5- Heard arguments from both side- points that arise for my consideration are:

i- Whether an appeal would lie under Order XLIII Rule 1(r) of CPC against an order passed rejecting interlocutory application filed under Order XXXIX Rule 2-A of CPC?

ii- Whether applicant in I-A-No-XVIII in trial Court had established that defendant Nos-4 16 and 47 therein had disobeyed order of injunction granted in favour of plaintiff on I-A-No-XVI by trial Court vide its order dated 02-08-2012?

iii- Whether impugned order warrants any interference at hands of this Court?

6- Before learned counsel for appellant could commence his arguments on appeal learned counsel for respondents raised preliminary objection regarding maintainability of appeal under Order XLIII Rule 1(r) of CPC against impugned order- This made this Court to hear both side on maintainability aspect in beginning- As such point No-1 has arisen for consideration-

7- learned counsel for respondents in his arguments on maintainability submitted that by virtue of judgment of Gauhati High Court in case of Banamali Dey vs- Satyendra Chanda and Others reported in 1990 (2) Current Civil Cases 295 Miscellaneous First Appeal under Order XLIII Rule 1(r) of CPC is not maintainable against an order of rejection of interlocutory application filed under Order XXXIX Rule 2-A of CPC-

learned counsel for appellant in his arguments submitted that this Court in Devikarani vs- Venkatesha Sastry reported in ILR 1994 KAR 1444 has held that against an order passed on interlocutory application filed under Order XXXIX Rule 2-A of CPC appeal under Order XLIII Rule 1(r) of CPC would lie-

8- Order XLIII Rule 1(r) of CPC reads as below:

"1- Appeals from orders--An appeal shall lie from following orders under provisions of section 104 namely:-

(a) to (q) xxx (r)- an order under rule 1 rule 2 [ru