Sunil Thomas, J.

1. The appellants herein who are the appellants in A.S. No. 54 of 2013 of the lower appellate court are aggrieved by the dismissal of I.A. No. 774 of 2013, by which they sought an ad interim order of prohibitory injunction.

2. The first appellant is the owner of the plaint A schedule property and the first respondent is his brother. On the western side of the A schedule property, there are properties belonging to the respondents herein. The appellant claimed that a thondu on the western side was developed jointly by the appellants and the respondents into a wider way. After widening it, first respondent allegedly started claiming exclusive right of the way and attempted to block it. Hence, a suit was filed seeking an injunction with respect to the plaint B schedule way. After trial, the suit was dismissed which was carried in appeal by the plaintiff, to the appellate court. Along with the appeal, an interlocutory application was filed seeking an interim injunction against the respondents therein. The court below by impugned order dismissed the interlocutory application, which is the subject matter of this appeal.

3. The respondents appeared and raised a preliminary objection that the appeal is not maintainable in the light of specific bar under Section 104(2) of the Code of Civil Procedure, as explained by the Full Bench of the Honourable High Court in Sabyasachi Chatterjee v. Prasad Chatterjee & Ors. (`).

4. Since the question of maintainability of appeal on a legal issue was raised and the Calcutta view did not appear to be in conformity with the view taken by the single Bench of this Court in Ganesan v. Sadasivan (2004 (1) KLT 523) which was being consistently followed since thereafter, it was felt necessary to consider the question of maintainability. Mr. Gopikrishnan Nambiar was requested to assist this Court as Amicus Curiae which was readily accepted. The learned counsel has placed all the legal issues involved, supported by the views of Courts in other jurisdictions. He deserves encomium for the excellent research done and valuable assistance rendered as Amicus Curiae.

5. The crux of the contention of the learned counsel for the respondents was that in the light of Section 104(2) of the Code of Civil Procedure, an appeal against an interim order passed by the appellate court is not legally sustainable. Section 104 with special reference to Sub-section (2) reads as follows:

"104. Orders from which appeal lies:--

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:--

...........................................................

(2) No appeal shall lie from any order passed in appeal under this Section."

6. One of the earliest decisions on this point is Ramaswamy Reddiar and Ors. v. Chinna Sithammal and Ors. (AIR 1976 MADRAS 63). In that case two appeals pending before the lower appellate court were dismissed for default. Applications filed to restore both the appeals were dismissed. Those were carried in appeal before the Honourable High Court. The objection raised by the learned counsel for the respondent was that such appeals were not maintainable against the interlocutory orders passed by the appellate court. Learned counsel also relied on the decision in O.C. Kalahasti v. Munnuswami Chettiar (AIR 1975 MADRAS 3). In that case, the trial court had refused to grant an injunction which was challenged in a civil miscellaneous appeal. In that appeal, an application for temporary injunction was filed, which was dismissed. That order was challenged in appeal before the Honourable High Court. The Honourable High Court held that in the light of the bar under Section 104(2), such an appeal was not maintainable. Distinguishing Kalahasti's case on facts, High Court in Ramaswamy's case held that the order which was appealed in Kalahasti was an order on an interlocutory application filed in