1. The additional third defendant in the original suit is the petitioner.

2. In the suit filed by the respondents for declaration of easement of way by prescription over plaint 'C' schedule property and for permanent prohibitory injunction, an application for temporary injunction was filed on which, an ex parte ad-interim order of injunction was passed.

3. Later, respondents 1 to 3 filed another petition in that suit as I.A.No.2154 of 2012 against the petitioner and respondents 4 and 5 for restoration of 'C' schedule property to its earlier position, on the allegation that the pathway was obstructed in contravention of the ad-interim order of injunction. The provision quoted in the said application was Section 151 of the Code of Civil Procedure.

4. The petitioner also filed a suit for permanent prohibitory injunction against respondents 1 to 3 wherein, he sought for a temporary injunction under Order XXXIX Rule 1 CPC restraining the respondents from cutting open a pathway through his property.

5. The learned Munsiff, who heard all the applications, by a common order allowed the applications filed by the respondents and dismissed the application filed by the petitioner.

6. The petitioner states that he has challenged the orders passed on the applications for temporary prohibitory injunction before the Sub Court, Perumbavoor, and as the order passed on I.A.No.2154 of 2012 is under Section 151 of CPC, no appeal lies from that order and he is challenging that order before this Court under Article 227 of the Constitution of India.

7. When the matter came up for consideration before this Court, the contesting respondents raised a preliminary objection that the impugned order falls within the ambit of Order XXXIX Rule 1 and accordingly, the same is appealable under Order XLIII Rule 1(r) CPC and hence, no application under Article 227 of the Constitution would lie. Since such a preliminary objection has been raised, this Court has to consider the maintainability of this petition.

8. Arguments have been heard.

9. The learned counsel for the petitioner, inviting my attention to a series of decisions, would argue that the order of temporary mandatory injunction will not come within the purview of Order XXXIX Rule 1 CPC, as it is evident from the fact that the said order was passed on an application filed by the respondents under Section 151 of CPC. Hence, it was argued that such an order is not appealable under Order XLIII Rule 1(r) CPC and thus, he has approached this Court.

10. The learned counsel for the respondents, per contra, inviting my attention to the provisions of Order XXXIX Rule 1 CPC, would argue that the mere quoting of Section 151 CPC in the petition filed by them will not take away the order from the ambit of Order XXXIX Rule 1.

11. For appreciating the arguments, it is profitable to have a glance at the provision of Order XXXIX Rule 1 CPC, which reads as under:-

"1. Cases in which temporary injunction may be granted.-

Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger or being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors.

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal of disposition of the property or [disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."

(emphasis supplied)

12. An order of injunction, whether interim o