( 1 ) THESE are two connected matters arising out of the same judgment of tile First Additional civil Judge of Banaras.

( 2 ) A suit was filed by the wife and two sons of a judgment-debtor for a declaration that a certain property was not saleable in execution of the decree obtained against the judgment-debtor. During the pendency of the suit an application was made for an injunction restraining the decree-holder from proceeding with the sale of the property. A share in the property -- the share of the judgment-debtor alone -- was, however, sold and purchased by the decree-holder on 18-2-1954.

( 3 ) THE respondents applied to the court which had issued the injunction to take action against the decree-holder for having disobeyed the injunction by putting the property to sale and purchasing it himself. The court below found that there had been a disobedience of the injunction which had been granted on 30-9-1953. The court, therefore, directed that the sale, which had taken place in defiance of the injunction, be set aside and further directed the appellant to suffer simple imprisonment for a period of five days.

( 4 ) MR. K. B. Asthana, appearing on behalf of the respondent raised a preliminary objection to the effect that no appeal lay. Mr. Asthanas contention was that this appeal was purported to have been filed under Order 43, Rule 1 (r) of the Code of Civil Procedure and that under that rule an appeal lay only against an order made under rules 1, 2, 3 or 10 of Order 39. Mr. Asthana, further contended that as this High Court had amended the provisions of Rule 2 by deleting Sub-rules (3) and (4) and substituting them by a new rule -- Rule 2a, the right of appeal which had been conferred by Sub-rule (r) of Rule 1 of Order 39 could not be available to the appellant for filing his present appeal-Reliance was placed on the decision of Agarwala, J. in Kefayat Husain v. Abdul Rashid, 1951 All WR (HC) 636 (A ). In this case Agarwala, J. expressed that the result of the amendment was to make a separate Rule 2-A, and there being no consequent amendment in order 43, Rule (1) Sub-rule (r), no appeal lay from an order made under this rule. It is not necessary for me to go into the question whether the fact that this Court had deleted Sub-rules (3) and (4) and had replaced those by Rule 2-A in Order 39 a right of appeal had been lost because no consequent amendment had been made in O. 43, because I am of the opinion that even apart from Order 43, Rule 1, a right of appeal from orders is provided for by S. 104 of the code of Civil Procedure and this right has not been curtailed by Order 43, C. P. O. Section 104 (1) (h) provides :

" (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. "

( 5 ) THEREFORE, an appeal would lie if the order under appeal were to fall within Sub-section (1) (h) of Section 104. There can be no manner of doubt that the order against which the appeal has been filed is an order by which the Court below has directed detention of a person in civil prison, and that this detention was not in execution of a decree. As I have already pointed out, the detention was ordered because the appellant was held to have been guilty of a breach of an injunction -- that is to say he was held to be guilty of contempt. I am to an extent supported in my view by the decision in Padarath Tewari v. Dulhin Tapesha, air 1932 All 524 (B) where Sulaiman, Acting C. J. and Niamatullah, J. held that under Section 104 (h) an appeal was expressly provided from an order directing the arrest or detention in the civil prison of any person otherwise than in execution of a decree. I would, therefore, hold that the preliminary objection raised by Mr. Asthana had no substance and that the appeal did lie.

( 6 ) AFTER having held that the appeal is entertainable, I come to determine the question