ORDER :- The defendant in the suit is the appellant. The plaintiff who is the respondent in this appeal was the Secretary of the Board of Trustees in charge of the Thyagaraya Chetti Educational Institution and of which Board the defendant-appellant was the President. The plaintiff filed a suit against the defendant for reliefs of injunction etc. and, incidentally, filed a petition, I. A. No. 6291 of 1973, under Order XXXIX, Rule 1, Civil P. C. for an order of temporary injunction to restrain the defendant from calling for a meeting of the Board of the Trustees in the alleged exercise of his right as President of the Board of Trustees. The contention of the plaintiff was that he, in his capacity as secretary of the Board of Trustees, was the person solely competent to call for a meeting of the Board of Trustees and no one else could usurp his powers. The learned V Assistant Judge, City Civil Court, who heard the petition did not accept the case of the plaintiff and dismissed I. A. 6291 of 1973.

2. Against the dismissal of the petition, the plaintiff preferred C. M. A. 36 of 1973 to the City Civil Court and once again sought interim orders in C. M. P. 49 of 1973 for a temporary injunction till the disposal of the appeal. The Second Additional City Civil Judge granted interim injunction in C. M. P. 49 of 1973 and, aggrieved by the said order, the defendant has preferred the present civil miscellaneous appeal.

3. When this appeal was filed, the office raised a query as to how the appeal was admissible as the order appealed against had itself been passed in an appeal and would therefore not fall within the provisions of Order XLIII, Rule 1, Civil P. C. The learned counsel for the appellant seems to have prevailed upon the admission Judge the contention that though the order appealed against was one passed by the appellate court, it was nevertheless an order passed under O. XXXIX, Rr. 1 and 2, Civil P. C. that as such, it was not an order passed in appeal as contemplated under Section 104 (2), Civil P. C. that C. M. P. 49 of 1973 was an independent petition pending the appeal and as such, the aggrieved party was entitled to prefer an appeal under Order XLIII, Rule 1, Civil P. C.

4. When the appeal was taken up, Mr. O. Radhakrishnan, learned counsel for the respondent, raised a preliminary objection stating that the appeal was not maintainable and therefore, it should be dismissed in limine. Mr. V. Shanmugham learned counsel for the appellant, stated that though he was not pressing the appeal on merits, he was nevertheless prepared to meet the challenge of the respondent's counsel about the maintainability of the appeal and advance arguments to sustain his earlier stand that the order passed in C. M. P. 49 of 1973, though passed by an appellate court, was nevertheless an appealable order under Order XLIII, Rule 1, Civil P. C.

5. The industry of counsel on either side as well as my own efforts in this behalf did not reveal any reported case of this court on the controversy raised in the appeal and hence, I am considering the matter in extenso, even though the learned counsel for the appellant represented that he was none too keen to prosecute the appeal on merits. Before proceeding to consider the objection raised by Mr. O. Radhakrishnan regarding the maintainability of the appeal, the circumstances under which the appeal has been filed and about which there is no dispute need reiteration. Admittedly, the order appealed against, viz., the order in C. M. P. 49 of 1973, is an order passed by an appellate court. It is equally a matter of certainty that the petition, C. M. P. 49 of 1973 was filed under Order XXXIX, Rule 1, Civil P. C. and consequently, the interim order passed therein must be construed as an order passed under Order XXXIX, Rule 1, Civil P. C. The question for consideration is whether an appeal would lie against an order passed under Order XXXIX, Rule 1, Civil P. C. by an appellate court.

6. Section 104, Civil P. C, which provi

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