The inherent power of the Court under S. 151, C. P. C. cannot be invoked where the remedy by way of appeal is not illusory.

( 1 ) THE caveat having been lodged, this revisional application has been heard as a contested application. In this revisional application the plaintiff/petitioner has challenged the order dated 13-3-85 passed by the learned Judge 8th Bench in charge of 12th Bench, City Civil Court, Calcutta, rejecting on the ground of maintainability, the plaintiff's application under S. 151 Civil Procedure Code for setting aside the order dated 14-8-84 whereby the application under O. 39, R. 4 of Civil Procedure Code filed by the opposite parties Nos. 2 and 3 was allowed ex prate and the ad interim order of injunction already granted was vacated, and for rehearing the petition under O. 39, R. 4 Civil Procedure Code.

( 2 ) THE plaintiff brought the Title Suit No. 660 of 1984 against the opposite party-defendants and filed an application under O. 39, Rr. 1 and 2, Civil Procedure Code for temporary injunction restraining the defendant No. 1 (United Bank of India) from making payment to the extent of Rs. 52,200/being the amount of two cheques to the defendant No. 2 (M/s. Navin Trading Corporation) or the defendant No. 3 (B. N. Jaiswal) the proprietor of M/s. Navin Trading Corporation) from the current account No. 455 maintained with the defendant No. 1 and also for temporary injunction restraining the defendants Nos. 2 and 3 from collecting or drawing the aforesaid sum from the said account maintained with the defendant No. 1. The trial Court passed the ad interim order of injunction accordingly pending the hearing of the petition for temporary injunction.

( 3 ) THE defendants Nos. 2 and 3 filed application under O. 39, R. 4 of Civil Procedure Code for vacating the ad interim order of injunction and the said application was fixed on 14-8-84 for hearing. The plaintiff filed hegira on that date. At about 1-30 p. m. the plaintiff's Advocate along with the plaintiff's representative Mr. Jagadish Sureka on enquiry from the learned Judge 8th Bench in-charge of the 12th Bench, also, came to learn that he would not take up any contested matter of the 12th Bench for hearing and accordingly they left the Court. On 16-4-84 the plaintiff's advocate consulted the cause-list to ascertain the date of hearing but to his surprise came to learn from the cause-list that the petition under O. 39, R. 4, Civil Procedure Code was allowed ex parte on 14-8-84 because of the absence of the plaintiff without going into the merit of the petition and ad interim order of injunction was vacated. The plaintiff then filed the application under S. 151, Civil Procedure Code which was however rejected by the impugned order on the finding that the application under S. 151, Civil Procedure Code was not maintainable as the order under 0. 39. R. 4, Civil Procedure Code was appealable.

( 4 ) MR. Tarun Chatterjee, appearing for the plaintiff petitioner has submitted that although the order under O. 39, R. 4, Civil Procedure Code is appealable under O. 43, r. 1, Civil Procedure Code, still in the absence of material for plaintiff/petitioner's failure to appear before the Court at the time when the matter was called on for hearing and in view of the non-speaking character of the order without basing the order on any material in the record, the remedy by way of appeal though available would have been illusory and that accordingly the application under S. 151, Civil Procedure Code for setting aside the said order and for rehearing the petition under O. 39, R. 4, Civil Procedure Code was maintainable and that the learned Judge by rejecting the application under S. 151, Civil Procedure Code only on the ground of non-maintainability has failed to exercise the jurisdiction vested in him. Mr. Chatterjee in support of his such submission has relied on the decision in the cases reported in the Law Journals as mentioned hereunder :- 1. AIR 1975 Cal 80 (FB), (Smt. Bimla Devi v. Aghore Chandra Mallick ). 2. (1978) 1 Cal LJ 174 , (Balaram Ojha v. Star Trading and Investment