An appeal lies under Order 43, Rule 1(r) of the Civil Procedure Code, 1908, against an ex parte order of ad interim injunction passed under Order 39, Rules 1 and 2.

LAHIRI, J. :- One of us (Hansaria, J.) sitting singly posed the question whereupon this Bench has been constituted to answer the same :

"Whether an appeal lies under O.43, R.1 (r) of the Civil P. C. 1908, against an ex parte order of ad interim injunction?" (Emphasis added).

2. In our opinion, the answer sought is very much there in the question itself. If an order of ad interim injunction is passed under O.39, R.1 or 2 of the Civil P. C., whether ex parte or otherwise, it is appealable, as O.43, R.1(r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer an appeal. However, the question requires further consideration as although this High Court has persistently and consistently held, since its inception, that an appeal does lie against an order of ad interim injunction if rendered under O. 39, R. 1 or 2 and the rule was confirmed by Mehrotra, C. J. in United Club v, Nowgon Foot Ball Association, AIR 1964 Assam 81. This court permits appeal against any order made under O.39, R.1 or 2, ex parte, speaking or non-speaking. However, the opposite view has been expressed by some High Court and hence the reference.

3. To resolve the question it is necessary set out the provisions of O.43, R.1(r) of the Code :

"1. Appeals from orders - An appeal shall lie from the following orders under the provisions of S.104 namely:-

(a) ** ** **

(r) an order under R.1, R.2, R.2-A, R.4 or R. 10 of O. XXXIX."

On a plain reading of the provision it appears obvious that all orders rendered under "R.1, R.2, R.2-A, R.4 and R.10, R.10 of O.39" are appealable. It is evident that any other restraint order passed under any other provision, though falling in O.39, is not appealable as O.43, R.1(r) permits an appeal against specific orders referred in O.43, R.1(r). Order 39 has been compartmentalised into two divisions : (1) temporary injunction, and (2) interlocutory orders Rules 1 and 5 fall under the head "temporary injunction", whereas Rr.6 to 10 fall under interlocutory orders. It is thus seen that All orders under Rr.1 to 5 of O.39 are nothing but order of "temporary injunction". We lay emphasis that 0.39, R.4 is also an enabling provision to grant temporary injunction like O.39, Rr.1 and 2. Amongst the "interlocutory orders" only an order passed under R.10 of O.39 is appealable, in spite of the fact that it is an "interlocutory order". The expression "interlocutory" means provisional, interim or temporary, but not final. Similarly the term "temporary" in the expressions "temporary injunction" means provisional and interim, and, therefore orders of temporary injunction cannot by their very nature be final. Notwithstanding the characteristics of interim, "provisional" or "temporary" nature of the orders, they have been expressly made appealable, if they are passed under Rr.1, 2, 2-A, 4 and 10. In our opinion, therefore, the court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under O.1 or 2 are always rendered ex parte. Parliament being fully aware of the situation permitted appeals against such orders. In our opinion, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim are appealable, if rendered under O.39, Rr.1 and 2. On perusal of O.43, R.1 (r), we notice that it speaks that an appeal shall lie from an "order" under R.1, R.2, R.2-A, R.4 and R.10 of O.39. Therefore, any order under Rr.1, 2, 2-A and 4 is appealable.

4. Now, let us turn to O.39, Rr.1, 2, 2-A and 4 to find out the nature and character of the process by which an ad interim injunction is issued. 0.39, R.1 states that on fulfilment of the "conditions precedent the Court may by Order grant a "temporary injunction", and what is more important, grant the order "until the disposal of the suit or until further orders". Thus, ad interim order of temporary injunction is clearly visu