( 1 ) AN appeal was preferred to this court by the respondents against an order of the trial court allowing an application under O. 39, Rules 1 and 2 of the C. P. C. A Learned single Judge of this Court, by his order dated 28-3-86, reversed the order of the trial Court and dismissed the application made by the appellant. It is against this order that the present L. P. A. has been preferred.

( 2 ) A preliminary objection has been raised by counsel for the respondents that this appeal is not maintainable. In support of this objection, reliance has been placed on the decision of a D. B. of this Court in (Shri Kunwarji Sonker v. Nirmal chand Sonkar L. P. A. No. 151/85 D/-on 17-1-1986. Counsel for the appellant urged that the view taken in the aforesaid L. P. A. is in the teeth of the judgement of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786, and as such, cannot be taken to be good law. It is not a case where the decision of the Supreme Court supra may not have been considered by this Court while deciding L. P. A. No. 151/85. On the other hand, the said case has been considered and distinguished. We are in respectful agreement with the