JUDGMENT :- This appeal is directed against the order of the District Court at Panaji, dated April 15, 1977, whereby the Court passed an interim injunction in favour of the respondents/original plaintiffs pending the hearing of an appeal filed to that Court against an order of temporary injunction passed by the trial Court.

2. A suit was filed by the respondents/original plaintiffs to obtain a permanent injunction against the appellants restraining them from interfering with the suit land. They applied for a temporary injunction. The application was rejected by the trial Court. The plaintiffs went in appeal to the District Court. Pending the appeal they applied to that Court for a temporary injunction. That injunction was granted by the order which is now impugned in this appeal.

3. At the hearing of this appeal Shri Peres Cardozo, learned advocate for the respondents, raised a preliminary objection that no appeal lies against an order passed by the District Court in appeal under S. 104 C. P. C. which reads as follows:-

"S. 104: (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:-

(a) to (f) omitted by Arbitration Act, 1940;

(ff) an order under S. 35A;

(ffa) an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 or S. 92, as the case may be;

(g) an order under S. 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules :

Provided that no appeal shall lie against any order specified in cl. (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

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

There is no dispute that the order of the trial Court was passed under the Rules in the Civil P. C. and that the appeal filed to the District Court against that order was an appeal which was expressly allowed by Rules. Therefore, the order of the lower Appellate Court granting interim relief is an order passed in appeal envisaged by sub-sec. (2) of S. 104 which provides that no appeal shall lie from any such order.

4. The words "any order passed in appeal" apply not only to the final orders passed in appeal but also to any order passed during the pendency of the appeal. There is no warranty to interpret the words "any order passed in appeal" as meaning only "the final order" passed in appeal. Sub-sec. (1) of S. 104 enumerates the orders against which appeals lie, and bars appeals against any other orders unless such appeals are expressly provided in the body of the Civil P. C. A second appeal against the final order is expressly provided by the Code. No second appeal would lie against the impugned order nor was in fact a second appeal filed.

5. Shri Cardozo relies on Chellappan v. K. P. Varughese, AIR 1964 Ker 23. There it was opined that the power given to an appellate Court under S. 104 C. P. C. 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) C. P. C. and cannot therefore, be appealed against. In the Kerala case, an application for temporary injunction was mov

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