( 1 ) IN this Letters Patent Appeal under Clause 15 of the Letters Patent the appellant original plaintiff of Civil Suit No. 1 of 1985 in the District Court of Panchmahals at Godhra has brought in challenge the judgment and order of the learned Single Judge of this Court M. B. Shah J. in Appeal from Order which was dismissed by the learned Single Judge of this Court in exercise of his powers under Order 43. Rule 1 of the Code of Civil Procedure 1908 The appellant-plaintiff had moved an interim injunction application Ex. 5 under Order 39. Rules 1 and 2 read with sec. 151 of the Civil P. C. praying for interim injunction on pending the suit against the respondents-defendants. After hearing the concerned parties the learned Joint District Judge of Panchmahals at Godhra dismissed the application Ex. 6 for interim injunction and vacated the ad-interim relief. Being aggrieved by the said order of the learned trial Judge the appellant preferred Appeal from Order as miscellaneous appeal under Order 43 Rule 1. That appeal came to be dismissed by our learned Brother M. B. Shah J. on 1/07/1985. It is in these circumstances that the present Letters Patent Appeal has been preferred by the appellant being dissatisfied with the said order.

( 2 ) PURSUANT to the notice issued in this appeal to the respondents Mr. Mehta the learned counsel appearing for the respondents has taken a preliminary contention as to the maintainability of this Letters Patent Appeal. He submitted that this appeal is barred both under sec. 104 sub-sec. (2) as well as under sec. 100-A of the Code of Civil Procedure. Consequently we have heard the learned Advocate for the appellant as well as the learned Advocate for the respondents on this preliminary point about the maintainability of the appeal. Having heard them on this point we have come to the conclusion that this letters Patent Appeal is not maintainable. The reasons which weighed with us are as under.

( 3 ) IT is not in dispute that the order of the learned Single Judge is an appellate order passed in exercise of the powers under Order 43 Rule 1 whereby miscellaneous appeal was dismissed by him. In these circumstances sec. 104 of the Code of Civil Procedure squarely gets attracted. The said section reads as under :"104 (1) An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders : (a) to (f) (Omitted by Arbitration Act 1940 (ff) an order under sec. 35a; (ffa) an order under sec. 91 or sec. 92 refusing leave to institute a suit of the nature referred to in sec. 91 or sec. 92 in the case may be; (g) an order under sec. 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules : Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of) a less amount ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section. It is not in dispute that the appeal heard by the learned Single Judge was filed before him under sec. 104 (1) (i ). Therefore further question survives as to whether any further appeal can be entertained despite sec. 104 sub-sec. (2 ).

( 4 ) MR. R. R. Shah the learned counsel for the appellant placing strong reliance on a Division Bench judgment of this Court in the case of Nahan Foundry (A Limited Company in Himachal Pradesh) and Anr. v. M/s. Mohanlal Khimjibhai and Sons and Anr. reported in 15 G. L. R. 897 submitted that such an appeal would not be barred under sec. 104 sub-sec. (2) of the Code of Civil Procedure. It is true that in that case S. H. Sheth. J. speaking for the Division Bench has taken the view that appeal under Clause 15 of the Letters Patent is not barred by sub-sec. (2) of se