An order directing issue of notice under Rule 3 of Order 39 of the CPC is not appealable.

( 1 ) PETITIONERS, who are defendants in the suit, have presented this petition under Art. 227 of the Constitution of India, for quashing of the order (Annexure P/2), dated 28-8-1981, passed in Misc. Civil Appeal No. 41 of 1981, by First Additional Judge to the Court of District Judge, Vidisha, camp Basoda, whereby the petitioners have been restrained from interfering with the possession of the plaintiffs/respondents Nos. 1 and 2, over the suit land.

( 2 ) THE material facts leading to this petition are thus the respondents Nos. 1 and 2/ plaintiffs instituted a suit for declaration of title and permanent injunction in relation to the land situated at survey No. 51/1, area 3. 547 hectares, in village Jafrabad Pipariya, Tehsil Basoda. The plaintiffs by an application under O. 39 Rr. 1 and 2, CPC, prayed for an order of grant of temporary injunction. The trial Court having not been satisfied on the material, did not pass an ex parte temporary injunction but directed issue of notice to the defendants. The plaintiffs aggrieved of the order of issuance of notice, preferred an appeal under O. 43, R. 1 (r), CPC. The appellate Court after taking certain documents on record on an application under O. 41, R. 27, finally decided the application under O. 39 Rr. 1 and 2 granting temporary injunction, restraining the defendants/petitioners from interfering with the possession of the plaintiffs over the suit land. Aggrieved of this order petitioners have approached this Court.

( 3 ) SHRI Arun Mishra, learned counsel for petitioners, attacked the order on two counts firstly, the appeal before the lower appellate Court was not maintainable, as the order under appeal was not an order of refusal or grant of temporary injunction, but was one under O. 39, R. 3, CPC, which was not appealable. Counsel pressed into service. H. Bevis and Co. v. Ram Behari, AIR 1951 All 8; Iqbalsingh v. Chanan Singh, AIR 1966 Pandh 165; Khusilal v. Gorelal, AIR 1986 MP 47. It was next contended that even if the lower appellate Court was of the opinion that the appeal was maintainable, it could not have finally granted the temporary injunction till the decision of the suit, as it would amount to hold up the proceedings pursuant to the reply to show cause notice; therefore, the appellate Court ought to have remitted the case to trial Court for passing order on the application under O. 39, Rr. 1 and 2. To support the contention, reliance was placed on a decision of this Court in case of Chhaganlal v. Niwasdas, AIR 1963 MP 208.

( 4 ) TO appreciate the first contention, a reference to S. 104, CPC is necessary, which is extracted in extenso:"104. Orders from which appeal lies. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :- xxx xxx xxx xxx xxx (ff) an order under S. 35a; (ffa) an order under S. 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or S. 92, as the case may be; (g) an order under S. 95; (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; (i) any order made under rules from which an appeal is expressly allowed by rules; provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section. "

( 5 ) A bare look to this section shows that an appeal lies only from those orders which have been enumerated in this section and from no other orders. For the purposes of this petition clause (i) of S. 104 (1) is relevant which speaks that an appeal shall lie under rules from which an appeal is expressly allowed by rules. S. 105, CPC, puts a further b