The main legal point established in the judgment is the interpretation of the appealability of an order passed under Order XXXIX Rule 1 and 2 by an appellate court sitting on appeal against the final decree of a suit, and the applicability of the bar under Section 104(2) to such orders.

Whether an order passed under Order XXXIX Rule 1 and 2 by appellate court sitting on appeal against final decree of a suit is appealable under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, is the question to be answered in revision petition?

2. Petitioner Nemi Chand Gangwal, as plaintiff, instituted Title Suit No. 243/2010 in the Court of learned Munsiff No. 1, Kamrup at Guwahati which was subsequently transferred to the Court of learned Munsiff No. 2. By this suit, plaintiff prayed for a decree for declaration along with permanent injunction for restraining the defendants and their employees, agents etc. from demolishing the latrine and well of the plaintiff and from locking their passage for access to latrine and well. The defendants contested the suit by filing written statement and otherwise. After conclusion of trial, the learned Munsif by his judgment and decree dated 21.03.2014 dismissed the suit with cost. Aggrieved, plaintiff preferred Title Appeal No. 36/2014 in the Court of learned Civil Judge No. 2, Kamrup at Guwahati. Appeal has been admitted and records have been called for.

3. In this appeal plaintiff filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for mandatory injunction directing the opposite party therein to provide access to the latrine and bath rooms by unlocking the lock put on the gate without further delay. Misc. (J) Case No. 259/2014 was registered by the appellate Court on such application. Opposite party No. 1 submitted written objection in this miscellaneous case contesting the prayer for mandatory injunction. Thereafter, the learned court passed impugned order on 12.08.2014 after hearing both sides and thereby rejected the prayer for injunction. The learned court held that the petitioner does not have prima facie case for getting injunction and on that finding the prayer for injunction was turned down. This order dated 12.08.2014 has been called in question in this revision petition. On 10.09.2014 when this petition came for motion hearing, this court expressed doubt about maintainability of the revision petition on the ground that impugned orders having been passed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, an appeal would lie against the impugned order and consequently revision petition by invoking constitutional remedy under Article 227 of the Constitution of India would not be maintainable. The learned counsel for the petitioner took time for specifying this Court and this is how the matter has been placed again before this Court.

4. I have heard Mr. OP Bhati, learned counsel for the petitioner who submits that order passed by the appellate Court under Order XXXIX Rule 1 and 2 being appellate in nature, no further appeal shall lie there-against under Order XLIII Rule 1 read with Section 104 of the Code of Civil Procedure. Referring to sub-Section 2 of Section 104, Mr. Bhati submits that no appeal shall lie from any order passed in appeal under this Section and so, on the basis of the expressed bar under Section 104(2) of the Code of Civil Procedure, no appeal under Order XLIII Rule 1 would be maintainable. Mr. Bhati has placed reliance on the following judgments:-

(1) New Kenilworth Hotel (P) Ltd. Vs. Orissa State Finance Corporation & Ors: (1997) 3 SCC 462

(2) Shah Babulal Khimji vs. Jayaben D. Kania : (1981) 4 SCC 8

(3) Madhusudan Begetable Products Co. Ltd. Vs. Rupa Chemicals : AIR 1986 Guj 156

(4) Firm Chhunilal Laxman Prasad vs. Agarwal and Co. : AIR 1987 MP 172

(5) C. Kalahasti vs. P.C. Munuswami Chetti : AIR 1975 MAD 3

5. In case of New Kenilworth Hotel (P) Ltd. (supra), as against an interlocutory order passed by the learned trial court, an appeal was preferred before the Single bench of the High Court of Orissa under Section 104 (1) read with Order XLIII Rule 1 of the Code of Civil Procedure. The Single bench vacated the interlocutory order of injunction by order