The main legal point established is that an order of injunction under 0.39 R.1 of the Civil Procedure Code is appealable under 0.43 R.1 (r), and the court cannot entertain a revision petition in such cases.

1. This revision is by the defendants whose application for an order of mandatory injunction was dismissed by the trial court. Learned counsel for the respondent-plaintiff raised a preliminary objection that the application for revision cannot be entertained in view of the hurdle contained in S.115 (2) of the Code of Civil Procedure (for short'the Code'), since an appeal lies against the impugned order.

2. Facts are the following: In a suit filed by the plaintiff for perpetual injunction restraining the defendants from entering upon the plaint schedule property, an application for a temporary injunction was also filed. The temporary injunction was to restrain the defendants from trespassing upon the plaint schedule property or from cutting open a pathway through the said property. The trial court granted an ex parte interim injunction order. When the defendants entered appearance and filed abjections, the court vacated the ex parte order and dismissed the application for temporary injunction. Neither the appellate court nor the revisional court disturbed the order dismissing the application for injunction. Defendant's case that they were using a portion of the plaint schedule property as a pathway appeared to the court to be prima facie true. But defendants complained that the plaintiff taking advantage of the ex parte interim order had put up a fence in such a way as to block the pathway claimed by them. An application for directing the plaintiff to remove the fence so put up was filed in the trial court. The application was dismissed by the lower court. Hence this Civil Revision Petition at the instance of the defendants.

3. Learned counsel who raised the preliminary objection contended that the impugned order falls within the scope of 0.39 R.1 of the Code, although the defendants had quoted only S.151 in their application. It is not disputed that if the order has been passed under 0.39 R.1 of the Code, the remedy of the defendants is to file an appeal since an appeal is proved in 0.43 R.1 (r) of the Cede against such an order. I shall now proceed to examine the question whether the order under attack bad been passed under 0.39 R.1 of the Code.

4. An order dismissing the application for temporary injunction filed by a plaintiff could only be passed under 0.39 R.1 or R.2 of the Code. There is no dispute on that aspect. That orders of mandatory injunction are envisaged in 0.39 is no more in doubt now since the weight of authorities is in favour of the view that such injunctions are also contemplated in 0.39 of the Code. Earlier, there was some doubt on that point. Beaman, J. expressed that doubt first as early as in Rasul v. Pirbhai (AIR 1914 Bombay 42). It was doubtful for His Lordship whether the court has power at all to issue mandatory injunction on an interlocutory application. Shah, J. who was also on the Bench however, did not share the doubt expressed by Beaman, J. and the learned judge left the question to be decided in other appropriate cases. During the same period another Division Bench of the Bombay High Court in Champsey Bhimji & Co. v. Jumna Flow Mills (AIR 1914 Bombay 195) had adopted the opposite view and held that mandatory injunctions can be granted on interlocutory applications filed under 0.39 of the Code. The said view has been consistently followed in later decisions by other High Courts. (Vide Kandaswami v. Subramania (AIR 1918 Madras 588), R.K. Biswas v. The Union of India (AIR 1966 Patna 263), Maria v. Alvaro (AIR 1978 Goa 46) and Patram v. Rameshwardayal (AIR 1979 NOC 182-M. P. High Court). But in none of those cases had the question been considered whether a mandatory it junction could be granted on an application filed by a defendant under 0.39 of the Code. Learned counsel for the petitioners referred me to the decision in Varghese v. Joseph Thomas (AIR 1957 Trav. Co. 286). The Travancore-Cochin High Court had in that decision, confirmed the reasoning adopted by the trial court that "if in