Order 39, Rule 4 is intended to cover two classes of cases and cannot be read to allow a party to re-open a case after the appeal time has passed or after the original order has been dismissed.

1. The appellant appeals against the order of the Subordinate Judge of Berhampore in the matter of a temporary injunction in the following circumstances.

2. The minor plaintiff in O.S. No. 14 of 1923 on the file on the lower Court is suing to set aside a Court sale in O.S. No. 39 of 1921 so far as it relates to his share of the property sold. The appellant was the decree-holder purchaser at the Court sale. Unable to get possession under his sale, he filed O.S. No. 56 of 1925 to eject the present plaintiff and his father. The trial of that suit was stayed for a long time but a decree was passed in it ex parte in favour of the present appellant on 10th March 1928. In the meantime on 30th January 1928, the minor respondent filed his suit, O.S. No. 14 of 1928, and with it an application for a temporary injunction restraining the appellant from executing his decree in O.S. No. 56 of 1925. That application came on after notice to the appellant for hearing on 10th September 1928. The appellant put in no appearance and filed no counter and an order was passed staying delivery under the decree in O.S. No. 56 of 1925 till the disposal of O.S. No. 14 of 1928. On 11th September 1928, the appellant put in a petition under Order 39, Rule 4 praying that the order of the previous day be dissolved. On 24th October 1928, the Subordinate Judge passed orders on this directing that "in order to do substantial justice to both sides," the injunction be varied allowing a receiver to collect half the current fasli rents and staying all further execution. Against this order, the appellant has come up in appeal.

3. The respondent advances a technical plea that as the appellant has not appealed against the original order of 10th September 1928 staying delivery, that has become final and binding upon him and that therefore the present appeal is futile. The appellant endeavours to meet this point by contending that Order 39, Rule 4 allows a Court on application to vary an injunction whenever and in whatever manner it likes and that the original order has in that way been superseded by the present order under appeal which is itself an appealable order. The respondent rejoins that such a wide interpretation of Order 39, Rule 4 is untenable and that the lower Court has not in fact varied its original order since it merely imposed on it an order appointing a receiver, which in any case it had no jurisdiction under Order 39, R, 4 to do, since neither party had asked for a receiver and since the appointment of a Receiver has nothing to do with the passing of an injunction and certainly nothing to do with Order 39, Rule 4. The real point at issue therefore is, what is the scope of the jurisdiction of the Court under 0.39, Rule 4?

4. We think the point taken by the respondent that the Subordinate Judge has not really varied his original injunction staying delivery, though he purports to do so by appointing a Receiver for the current rents, is a good point. The original order staying delivery remains in full force and is reiterated in the revised order. Whatever be the scope of 0.39, Rule 4, it cannot be that a party can appeal against a mere reiteration of the original order of injunction when he has failed to appeal against the original order.

5. We think it is clear that Order 39, Rule 4 is intended to cover two classes of cases. (1) When an urgent order ex parte has been passed under Rule 3, Rule 4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside, and (2). When an injunction order already in force has, owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under Rule 4 to the Court to discharge, vary or set it aside. We are clear that Rule 4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side has had an opportunity of being heard, and no grounds other than those available at the original hear