Orders passed by the lower appellate court under Order 39 of the Code of Civil Procedure, 1908, are appealable, notwithstanding the fact that they may have been issued in exercise of the powers under Order 39 Rule 1 of the Code.

This Revisional application has been adjourned for a decision on the question of maintainability of the same. The point which arises for consideration is whether the impugned order of interim injunction granted by the lower appellate court during the pendency of the miscellaneous appeal filed before it is appealable or revisable. Mr. Dey has argued, in support of the Revisional application, that the impugned order is revisable and not appealable. He has relied on a decision reported in AIR 1975 Goa page 15 Mr. Ghosh, appearing on behalf of the contesting opposite party no. 1, has however, contended that since the impugned order of injunction appears to have been issued in exercise of the powers under Order 39 Rule 1 of the Code of Civil Procedure, the same is appealable notwithstanding the fact that the same has been issued not by a trial court but by a court of appeal.

2. It appears that by the impugned order the lower appellate court rejected the application of the plaintiff under Order 39 Rules 1 and 2 read with s. 151 of the Code of Civil Procedure, 1908 and allowed the application made on behalf of the defendants under Order 39 Rule 4 of the Side Code. The ad-interim order granted initially has thus been vacated.

3. Orders passed under Rules 1 and 2 or Rule 4 of Order 39 of the Code are subject to an appeal in terms of Order 43 Rule 1(r) read with the provisions of s. 104 sub-s. (1) clause (i). Then follows sub-s. (2) which provides that "no appeal shall lie from any order passed in appeal under this section." The connected Miscellaneous Appeal, which is pending before the lower appellate court, is undoubtedly an appeal under the provisions of s. 104(1) of the Code of Civil Procedure, read with order 43 Rule 1 or vice versa. Such an appeal would obviously be barred if the view taken in the decision cited by Mr. Dey be accepted I am, however unable to accept the said decision as correct in view of the unreported Bench decision of this court in FMAT 28 of 1976 (Mrs. Anjali Sengupta v. A.K. Das & Ors.), decided by H.N. Sen and B.C. Ray, JJ on 30.3.76. That decision clearly holds that an order passed by the lower appellate court under Order 39 of the Code is appealable. It is true that in the said Bench decision there is no reference to s. 104(2) of the Code of Civil Procedure but even then sitting singly I am bound by the said decision and if I had felt inclined to differ from it, the only course open to me would have been to refer the matter to a Division Bench for examining the propriety and correctness of the said decision. I feel, however, that the said decision is correct on principle notwithstanding non-mention of s. 104(1) of the Code which in my view, bars only a Second Appeal and not a First Appeal under s. 104(1) read with Order 43 Rule 1 of the Code against the orders mentioned therein and passed either by the trial court or by the court of appeal in the exercise of its powers under s. 107(2) of the Code, which expressly provides for the exercise by the appeal court of powers conferred on courts of Original Jurisdiction. Exercise of such powers by the appellate Court would result in original order as distinguished from appellate orders which postulate the existence of original orders passed by a subordinate court and the bar of s 104(2) applies to only to appeals against such appellate orders. That bar was never intended to apply to original orders whether passed by the trial court or by the appellate court in the exercise of powers under s. 107(2) of the Code of Civil Procedure on the matters mentioned or included in Order 43 Rule 1 and expressly made appealable under that provision read with s. 104(1) as in that event, a conflict would immediately arise between the two subsections (sub-ss. 1 and 2) of s. 104 and in construing s. 104(2) this aspect should not be overlooked.

I am supported in this view by the earlier Bench decision of this court reported in ILR 26 Calcutta 275 and the Allahabad Full Bench (ILR 2