An order passed in appellate proceedings by the learned District Judge cannot be further made the subject matter of another appeal ignoring the provisions of Section 104(2) of the Civil Procedure Code, 1908.

( 1 ) THIS revisional application has been assigned to this bench by the Hon'ble the Chief Justice in view of divergence of judicial opinion expressed by two learned Single Judges on the question of maintainability of a revisional application from an order of injunction issued by an Appellate Court under Order 39, Rules 1 and 2 of the Civil Procedure code, 1908 (hereinafter referred to as 'code' ). A learned Single Judge of this Court noted the divergence and opined that the matter should be placed before a larger bench. The learned Single Judge found that two conflicting opinions were expressed by two learned Judges in the following judgments: a) In the case of Gyan Singh and Ors. v. Guljar Singh and Ors. , reported in 1988 (1) Calcutta Law Journal, 389, a learned Judge of this Court was pleased to hold that an appeal is maintainable against an order of the Appellate Court rejecting the application for temporary injunction filed by the plaintiff. b) A different view has been expressed subsequently by another learned Single Bench in the case of Murari Kumar Saraf v. Sri Jagannath Shaw reported in AIR 1994 Calcutta 205. In that decision, the learned Single Judge held that an interlocutory order passed by the First Appellate Court is not appealable and a revisional is maintainable. The learned Judge who subsequently delivered the judgment in Murari Kumar Saraf held that the previous judgment delivered in Gyan Singh (supra) was delivered per inquirium.

( 2 ) THE facts of the case, which led to the aforesaid controversy, are noted below : the petitioner, in this revisional application, claimed that he is a tenant in respect of a portion of Premises No. 44/45, Ekbalpore road (hereinafter referred to as the 'said premises') and, according to the petitioner, the said tenancy includes a garage. The opposite party No. 1 also claimed to be a tenant in respect of a portion of the said premises and claimed the said garage as a part of his tenancy. A suit, being Title Suit No. 320 of 1995, was filed by the opposite party No. 1 before the 6th Munsif's Court at Alipore and, in the said suit, the opposite party No. 1 prayed for a declaration of his title and mandatory injunction against the petitioner in respect of the said premises. An application for ad-interim order of injunction was ex- parte moved on behalf of the opposite party No. 1, but, no adinterim order was passed and against the said refusal, the opposite party No. 1 filed a Miscellaneous Appeal No. 362 of 1995 before the learned District Judge at Alipore. The learned District Judge passed an ad-interim order on 21. 8. 1995 as prayed for by the opposite party no. 1 and fixed the matter on 11. 2. 1995.

( 3 ) AGAINST the said ad-interim order of injunction, an application under order 39, Rule 4 of the Code for vacating of the said order was filed by the petitioner.

( 4 ) BY an order dated 28. 8. 1995, the learned District Judge, on the petitioner's application for vacating fixed the hearing of the matter on 13. 11. 1995. In the meantime, the opposite party No. 1 moved ex-parte a writ petition before the Hon'ble High Court complaining of police inaction in carrying out the order of the learned District Judge dated 21. 8. 1995.

( 5 ) HOWEVER, we are not concerned with that.

( 6 ) THE present revisional application was filed by the petitioner challenging the order dated 21. 8. 1995 and also the subsequent order dated 28. 8. 1995. The opposite party No. 1 raised a preliminary objection about the maintainability of this revisional application and it was contended by the opposite party No. 1 that the order passed by the learned District judge is appealable in view of the decision of the Court in Gyan Singh. In the background of these facts, the divergence of views expressed by two different learned Benches came up for consideration before the learned single Judge. The learned Single Judge, however, held that the said divergence has a bearing in so far as the order dated