JUDGMENT :

This appeal is against the order dated 18.3.2009 passed by the learned District Judge, Bhadrak, Balasore in Misc. Case No. 4 of 2002 registered on an application under Order 39, Rule 2-A C.P.C.

2. Facts leading to the filing of the present appeal may be stated in brief.

Appellant herein is defendant No. 1 and Respondent No. 1 is the plaintiff in T.S. No. 452 of 2000 on the file of learned Civil Judge (Junior Division), Balasore. On the plaintiff's petition under Order 39, Rule 1 and 2 C.P.C., Misc. Case No. 287 of 2000 was registered in which the prayer for interim injunction was rejected. Being aggrieved, he preferred Misc. Appeal No. 123 of 2001 wherein direction to maintain status quo in respect of M.S. Plot No. 572 and 577/2235 was passed on 7.1.2002 on the consent of the parties which was made absolute vide judgment dated 23.1.2002 passed in the Misc. Appeal. After final disposal of that Misc. Appeal, R-1 filed a petition under Order 39, Rule 2-A C.P.C. alleging that the appellant and his sons disturbed the status quo by digging earth and putting cement pillars for construction of a house over the land in respect of which the parties were directed to maintain status quo. After giving opportunity to the defendant to file show cause and allowing the parties to adduce evidence and upon assessment of the materials placed before him, the learned District Judge passed the impugned order observing that Appellant having violated the order of status quo, his property i.e. the land pertaining to Plot No. 577 be attached for a period of one year.

3. This order has been challenged on the grounds that the learned District Judge should not have entertained the application under Order 39, Rule 2-A C.P.C. after the disposal of the Misc. Appeal; that when the learned District Judge concluded that there is no evidence as to when the appellant encroached any portion of a joint passage in respect of which the direction to maintain status quo was passed, he could not have held that the appellant had violated the order to maintain status quo; that the finding that the order of status quo has been violated is not supported by any materials; and, in absence of proof of alleged violation beyond reasonable doubt, the impugned order should not have been passed.

4. Respondent No. 1, Ratnakar Hota, filing objection to the appeal memo has contended that since the impugned order has been passed by the learned District Judge in Miscellaneous Appeal No. 123 of 2001, the present appeal is not at all maintainable in view of Section 104 (2) of the Code; that the appeal has otherwise become infructuous because the period of attachment prescribed in the impugned order has already expired in the meantime; and, that the impugned order is otherwise justified.

5. On the maintainability of the present appeal, learned counsels for both the parties have taken me through the provisions contained in Sections 96 and 104 (2) along with Order 41, Rule 19 and Order 43, Rule 1 of C.P.C. R-1 has not submitted any memo of citation whereas the appellant has cited judgments reported in AIR 1976 Madras 63 (Ramaswamy Reddiar and others v. Chinna Sithammal and others) and AIR 1982 AP 284 (K. Gangulappa Naidu and others v. K. Gangi Naidu). On behalf of the appellant, it is submitted that the proceeding initiated before the learned District Judge under Order 39, Rule 2-A C.P.C. being an independent proceeding and the impugned order having not been passed in an appeal under Section 104(1), C.P.C., the present appeal against the said order is not hit under Section 104(2) C.P.C. In Ramaswamy Reddiar (supra), it has been explained that in order to attract Sub-section (2) of Section 104 C.P.C. the appeal should be one falling under Section 104 C.P.C. whereas if the appeal is one under Section 96 read with Order 41, Rule 1 C.P.C., Section 104(2) is not applicable. In K. Gangullapa Naidu (supra), it has been explained that in a regular appeal pending before the appellate Court, if an