Interlocutory orders passed in an appeal are not appealable under S.104 CPC. A plaintiff claiming a temporary injunction must show a prima facie case, a balance of convenience, and a likelihood of irreparable injury to justify the grant.

1. The appellants are the plaintiffs in a suit for injunction to restrain execution of a decree obtained by the 1st respondent for eviction of the 2nd respondent from a piece of land, 131/2 cents in extent. That decree was by the Subordinate Judge," Ernakulam, affirmed on appeal by this Court on January 25,1963. On February 28,1963, the appellants instituted the present suit claiming 8 out of the 131/2 cents as been dedicated by the 1st respondent's vendor and given possession to the 2nd respondent in 1946/1947 for putting up a temple for Lord Subramonia who was made no party to the decree, and applied for a temporary injunction to restrain execration proceedings moved by the 1st respondent. Though an interim injunction was ordered thereon, the Subordinate Judge has, after hearing both sides, discharged the same. Against that order, the appellants have preferred C. M. A. No. 23 of 1963 in the District Court, Ernakulam, and by an interlocutory application therein sought a temporary injunction to restrain the 1st respondent from executing his decree; but that application was dismissed by the District Judge by an order dated April 6,1963. This Civil Miscellaneous Appeal is against the last-mentioned order.

2. Counsel for the 1st respondent raised a preliminary objection to the maintainability of this appeal; and it has been argued at length by both sides.

3. Appeals from orders, not amounting to decrees, are dealt with in S.104 CPC. and the rules mentioned therein are in 0.43 in the First Schedule of the Code. Admittedly the C. M. A. No. 23 of 1963 before the District Judge is an appeal under those provisions. Sub-section (2) of S.104 CPC. enacts:

"No appeal shall lie from any order passed in appeal under this section."

It follows that, if the impugned order is an order passed in the C. M. A. before the District Judge, it will be within the inhibition of the above sub-section.

Counsel for the appellants contends that the application for temporary injunction moved before the District Judge was one under 0.39 R.1 CPC. and therefore its disposal is not an order in the appeal but an order in exercise of his original jurisdiction under S.107 CPC. The last mentioned section provides that an appellate Court 'shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein'. In the present case, an application for temporary injunction was moved in the suit before the Subordinate judge and has been disposed of by him. Against that disposal a Civil Miscellaneous Appeal is preferred before the District Judge and it is still pending disposal by him. The District Judge is thus seized of the matter in appeal, that is in exercise of his appellate jurisdiction. It was as an incidental relief in that appeal that the appellants moved a second application for temporary injunction whose dismissal is the subject of appeal herein. The power given to an appellate Court under S.107 CPC. is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate Court. It confers power on the appellate judge not only to dispose of the appeal on its merits, but also to pass any interlocutory or incidental orders deemed necessary in the circumstances of the case to maintain the status quo or to preserve the subject-matter of the appeal till the disposal of the appeal, as an original court is empowered to do in the case of suits before it. The incidental orders passed by an appellate Court in interlocutory

applications moved in an appeal before it are 'orders passed in appeal' within the scope of S.104 (2) CPC. and cannot therefore be appealed against.

4. In Mt. Umatur Robab v. Mahadeo Prasad (AIR. 1941 All. 338) the dismissal of an application to set aside the abatement of a Civil Miscellaneous Appeal under 0.43 R.1 (d) was held to be non-appealable as per subsection (2) of S.104 CPC