JUDGMENT :- This appeal is directed against the order of the District Judge D/- 27-2-1974 whereby he restrained the appellants/defendants from interfering with the possession of the subject-matter of the suit pending the hearing and disposal of an appeal in that Court, which was filed by the respondents/plaintiffs. The Senior Civil Judge. Panaji, dismissed the application of the plaintiffs for temporary injunction pending disposal of their suit. The plaintiffs went in appeal to the District Court. The District Court passed an order of ad interim injunction, restraining the defendants from interfering with the suit property until the final hearing and disposal of the appeal. The defendants aggrieved by this Order file the present appeal.

2. On behalf of the plaintiffs Shri Kakodkar raises a preliminary objection, namely that the impugned order is not appealable. He contends that the order of the District Court is "an order passed in appeal" within the meaning of S. 104 (2), Civil P. C. The reply of Shri G. D. Kamat, learned Advocate for the defendants, is that the impugned order is an original order passed by the District Court and is not therefore an order passed in appeal. In this view. Shri Kamat concludes that this appeal is competent.

3. Shri Kakodkar has relied on Chellappan v. K. P. Varughese, AIR 1964 Ker 23 which is on all fours with the present case. In that case also the impugned order was passed by the lower appellate Court in an appeal preferred before the District Judge against an order of the Subordinate Judge disposing of an application for temporary injunction pending the hearing of the suit. The Kerala High Court held that the incidental order 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 Civil P. C. and cannot therefore be appealed against and that an appeal to the High Court against an interlocutory order Passed by the District Judge in appeal under S. 104 read with O. XLIII, Civil P. C. was incompetent and liable to be dismissed in limine. They distinguished Chellappans case from L. D. Meston School Society v. Kashi Nath, AIR 1951 All 558; Rahiman Saheb v. Ganapathi Bhatta, (1900) ILR 23 Mad 517 and Hurrish Chunder Chowdhry v. Kalisundari Debi, (1882) 10 Ind App 4 (PC). They dissented from Shop of Battu Ramiah Lachayya v. Rechintala Veeriah, AIR 1961 Andh Pra 112. They relied on Mt. Umatur Robab v. Mahadeo Prasad, AIR 1941 All 338 and Cherian Lookose v. Narayana Pillai Gopala Pillai, 1958 Ker LT 829. I am in respectful agreement with the ratio adopted by the learned Judge who delivered the judgment in the Kerala case.

4. Shri G. D. Kamat relies on AIR 1961 Andh Pra 112 from which the Kerala High Court dissented. The facts in that case were that the plaintiff instead of bringing on record the legal representatives of the deceased defendant filed an application for amending the plaint by bringing on record the legal representatives of the deceased defendant alleging that as they are the legal representatives, they are liable to pay the amount of the suit. The Court allowed the plaintiff to amend the plaint and the case appears to have proceeded further. However, eventually, the lower Court passed an order dismissing the suit of the plaintiff on the ground that the suit had abated by reason of the plaintiff not having applied for bringing on record the legal representatives of the deceased defendant within time. The order says that the record does not show that there was any application for bringing on record the legal representatives. The Court did not agree with the argument of the plaintiff that he substantially complied with the provisions of O. XXII, Civil P. C. Against the order of the trial Court the plaintiff preferred a Civil Miscellaneous Application to the lower appellate Court where an objection was taken that no miscellaneous appeal would lie against this order and when the Court was also of that opini

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