Order passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure is appealable.

K. J. SENGUPTA, J. :- The above appeal was preferred against an order of injunction passed in a Miscellaneous Case No. 1941 of 2005 filed in the learned City Civil Court at Calcutta for restoration of the suit. The respondent Banerjee filed a suit in the City Civil Court at Calcutta some times in the year 2002 challenging a consent decree. The said suit was dismissed for default on or about 19th August, 2006. In order to restore the suit the aforesaid Misc. Case was filed. In the said Misc. Case an application under O. 39, Rr. 1 and 2 read with Section 151 of the Code of Civil Procedure was made and the impugned order was passed thereon. In terms of the earlier order dated 6th December, 2006 the appeal and the application filed in connection therewith were decided to be heard together on 31st January, 2007 and indeed it was heard on that day and on that date none appeared for respondent. This Court passed an order on 31st January, 2007 setting aside the order impugned with a direction to the learned Court below for hearing the said application under O. 39, Rr. 1 and 2 of the Code of Civil Procedure de novo upon affidavit. Thereafter the respondent, Manabendra filed an application for recalling of the aforesaid order dated 31st January 2007. This Court upon hearing the learned Counsel for the parties decided that the order dated 31st January 2007 would not be given effect to till further hearing is taken and if it is found that there is any serious objection to this appeal on merit both on law and on fact then the order would be recalled and the appeal would be heard de novo. Hence the matter is heard on the aforesaid understanding.

2. Mr. S. P. Roychowdhury, learned Senior Advocate with Mr. Aniruddha Chatterjee learned Advocate has taken preliminary point of maintainability of the appeal. He contends that the appeal does not lie as the order appealed against, was passed on an application under O. 39, Rr. 1 and 2 of the Code of Civil Procedure in the Misc. Case under O. 4. R. 9 of the Code of Civil Procedure.

3. He contends that even applying Explanation to Section 141 of the Code, substantive portion of the Code is not applicable in the proceeding under O. 9, R. 9 of the Code, consequently provision for preferring appeal under O. XLIII being substantive part of the Code is not applicable. According to him, only the procedural portion of the Code can be applied in this proceeding. In support of his argument he has cited an unreported decision of the Division Bench of this Court in the case of Sachin Prasad Mukherjee v. Pampa Kumar and others rendered in case of FMAT No. 1881 of 2006 with CAN No. 3791 of 2006.

4. This legal position has been settled and decided by the Supreme Court in a Judgment reported in AIR 1965 SC 1798.

5. Mr. A. Kar learned Advocate appearing with Mr. Saptangshu Bose contends that the unreported decision has been rendered without taking note of another decision rendered earlier by a Division Bench in case of Sushil Kumar De and another v. Chhaya De and others reported in (2004) 1 CHN 1.

6. According to him, by virtue of the provision of Section 141 with Explanation, when the provisions of O. 39, Rr. 1 and 2 of the Code of Civil Procedure has been made applicable by the learned Trial Judge sequelly provision for preferring appeal as provided under O. XLIII of the Code is automatically applicable. Any order passed under provisions of O. 39, Rr. 1 and 2 is made appealable under this portion of the Code. Therefore, as a matter of course the appeal will have to be preferred and the appellant has no choice. Provisions for preferring appeal against order has been provided broadly under Section 104 of the Code of Civil Procedure wherein it is stipulated amongst other that an appeal shall lie from any order made under the Rules from which an appeal is expressly allowed by the Rules. Rule means the schedule namely entire provisions of the order of the Code.

7. He contends that in Sushil Kumar De case (Supra) it h