This judgment establishes that where a statutory remedy exists via appeal, the supervisory jurisdiction of the court under Article 227 should not be invoked.

JUDGMENT

Revision petitioner is the plaintiff in O.S.No.25 of 2008 of the court of learned Munsiff, Alathur. That is a suit for prohibitory injunction to restrain respondent from trespassing into the suit property and committing waste therein. The suit was decreed in favour of petitioner. Respondent/defendant No.5 challenged that judgment and decree before learned Additional District Judge in A.S.No.421 of 2009 and during pendancy of that appeal, apprehending that petitioner is about to put up a transformer in the disputed property he filed I.A.No.358 of 2010 for an order of temporary injunction to restrain petitioner from putting up a transformer. Though that application was opposed by petitioner, learned Additional District Judge-II, Palakkad vide Ext.P3, order dated 26-03-2010 restrained petitioner from putting up transformer in the suit property or putting up any construction until disposal of the appeal. That order is under challenge in this petition preferred under Article 227 of the Constitution. Learned counsel for petitioner has contended that petitioner is the owner of property as found by the trial court and that there was no occasion or necessity for learned Additional District Judge to restrain petitioner from putting up transformer or other structure in the suit property. According to the learned counsel petitioner wanted to put up a plastic industry in the suit property for which installation of a transformer is essential. Learned counsel for respondent/defendant No.5 has raised preliminary objection as to the maintainability of the petition when statutory remedy of appeal is available to the petitioner. According to the learned counsel in view of section 104(2) and 106 of the Code of Civil Procedure (for short, “the Code”) proper remedy of petitioner is to challenge Ext.P3, order as provided under Order 43 Rule 1 of the Code. 2. Respondent filed I.A.No.358 of 2010 on which the impugned order is passed invoking Order 39 Rule 1 and 2 of the Code. This court inVincent Vs. Aisumma ( 1988(1) KLT 420 ) has held that defendant also can move an application for injunction against plaintiff under Order 39 Rule 1, if circumstances warranted that. That was a case where against the order of injunction passed at the instance of defendant, plaintiff preferred a revision in this court. A preliminary objection was raised as to maintainability of revision since the order under challenge was appealable under Order 43 Rule 1 of the Code. That objection was upheld and the civil revision petition was found not maintainable. True, that decision was rendered regarding maintainability of revision against an order of injunction passed under Order 39 Rule 1 and 2 of the Code. It is not disputed that the impugned order was passed under Order 39 Rule 1 of the Code in a regular appeal pending before learned Additional District Judge under Section 96 of the Code. An appeal is a continuation of the suit and hence it is well within the power of appellate court to pass such orders as the trial court could pass. Section 104 (1(i)) of the Code permits an appeal from “any order made under rules from which an appeal is expressly allowed by rules”. An order of injunction passed under Order 39 Rule 1 of the Code is appealable under Order 43 Rule 1(r) of the Code. Subsection 2 of 104 states that “no appeal shall lie from any order passed in appeal under this section”. The bar of appeal under the said provision applies only to cases where the order has been passed in an appeal preferred under (1) of the Code. In the present case the impugned order was passed not in an appeal arising under (1) or Order 43 Rule 1 of the Code but in a regular appeal preferred under Section 96 of the Code. Section

106 of the Code states , “where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a court (not being a High Court) in the exercise