The petitioners have challenged the order dated 02.07.2009 passed by lower Appellate Court i.e. Presiding Officer, Fast Track Court, Ahmedabad (Rural) in Civil Miscellaneous Application No.142 of 2008, whereby, the said Court was pleased to quash and set aside the order dated 22.10.2008 passed by Principal Civil Judge, Dholka, in Regular Civil Suit No.19 of 2007 at Exh.61. The learned Civil Judge, Dholka, by order dated 22.10.2008, was pleased to allow the plaintiffs-petitioner’s application and the Court has ordered to appoint Court Commissioner on payment of necessary charges by the plaintiffs-petitioners. The said Court has ordered that the Commissioner would remain present at the time of carrying out of fencing work surrounding the suit property.

2. The petitioners-plaintiffs had filed suit for declaration and injunction against the present respondents who are defendants in the said suit. The suit property referred as Tika No.5, City Survey Nos. 387, 388, 389, 398. In substance, the petitioners-plaintiffs had prayed that the respondents-defendants be restrained from causing interference in any manner in enjoyment of the suit property of the petitioners-plaintiffs.

3. Heard learned advocate Mr.Asifkhan Pathan for the petitioners. Learned advocate for the respondents absent.

4. Learned advocate for the petitioners has drawn attention of this Court to reply filed by the respondents-defendants in Regular Civil Suit No.19 of 2007 (Annexure C, page 60 to this petition), wherein, the respondents have declared that they have no connection or relation with the suit property of the plaintiffs and the plaintiffs have instituted the suit only to harass the defendants. It appears that in extremely short reply of two para filed by the defendants, the Defendants do not refer any other details.

5. Learned advocate Mr.Pathan for the petitioners has submitted that the petitioners-plaintiffs have prayed for interim injunction in Regular Civil Suit No.19 of 2007 and the said application (Exh.5) of the plaintiffs was allowed by the trial Court by order dated 23.05.2008. The defendants had filed Civil Appeal No.83 of 2008 against the said order and the said appeal came to be dismissed by the Appellate Court. Against that, original defendants had filed Special Civil Application No.11563 of 2008 before this Court and the same was withdrawn by the original defendants and by order dated 17.09.2009, the original defendants were permitted to withdraw the petition being Special Civil Application No.11563 of 2008.

6. Thereafter, the petitioners-plaintiffs had filed an application (Exh.61) praying for granting police protection while carrying out fencing work surrounding the suit property. The trial Court has passed order dated 22.10.2008 for appointment of Court Commissioner as referred above and, order dated 22.10.2008 passed by the trial Court came to be set aside by the lower Appellate Court by order dated 02.07.2009. Hence present petition.

7. Learned advocate Mr.Pathan for the petitioners has drawn attention to order dated 06.08.2009 passed by this Court (Coram : Honourable Smt. Justice Abhilasha Kumari) and, after hearing both the sides, interim relief was granted and the order of learned lower Appellate Court is stayed till further orders by this Court.

8. Learned advocate Mr.Pathan for the petitioners has submitted that learned lower Appellate Court has erroneously entertained the appeal inasmuch as the petitioners-plaintiff’s application before the trial Court was under Section 151 of the Code of Civil Procedure and it was not under Order 39. If that being so, the appeal is not maintainable before the lower Appellate Court. The submission has substance. The party can pray for police protection under Section 151 of the Code of Civil Procedure. In this regard, learned advocate Mr.Pathan for the petitioners has placed reliance on the decision in Shashi Kapur v. O.P. Gogne [AIR 1982 Del 245] and P. Shanker Rao v. Smt. B. Susheela [AIR 2000 AP 214]