HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 5270/2024 Shravanlal Meena Adopted S/o Prabhatilal ----Appellant Versus Durgaprasad Saini S/o Ishwarram ----Respondent For Appellant(s) : Mr. S.S. Hora with Mr. Adesh Arora For Respondent(s) : Mr. Lakhan Sharma for Mr. Prahlad Sharma HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

16/04/2025 This appeal is listed for orders under the heading of "defect category".

Learned counsel appearing for the appellant submits that the Registry has pointed out the defect that the present Civil Misc. Appeal has been filed against the order dated 15.06.2024 which is an interim order passed by the learned Additional District Judge, Srimadhopur, District Sikar under Order 39 Rule 1 & 2 CPC.

Hence, the present appeal seems not proper.

Learned counsel further submits that the interim order passed in exercise of powers under Order 39 Rule 1 & 2 CPC can be challenged by filing Civil Misc. Appeal in view of the provisions under Order 43 Rule 1 CPC. He has relied upon the judgment of the Hon'ble Apex Court passed in the case of A Venkatasubbiah Naidu Vs. S. Chellappan & Ors. reported in (2000) 7 SCC

695.

Learned counsel further submits that in view of observations of the Hon'ble Apex Court, the defect pointed out by the Registry deserves to be overruled.

Considered the submissions.

Section 104 of CPC says that:

"104. (1) An appeal shall lie from the following orders, and save an otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(i) any order made under rules from which an appeal is expressly allowed by rules:"

Order 43 Rule 1 says that:

"An appeal shall lie from the following orders under the provisions of Section 104, namely -

(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX;"

Order 39 Rule 1 says thus:

"1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders."

If we reads the aforesaid provisions conjointly, it will be revealed that any order passed under Order 39 Rule 1 & 2 CPC either it may be an interim order or final order of temporary injunction, can be challenged by availing remedy of appeal under the provisions of Order 43 Rule 1 CPC. Order 43 Rule 1 CPC does not bifurcate that an appeal cannot be entertained against interim order passed in exercise of powers under Order 39 Rule 1 & 2 CPC.

The Hon'ble Apex Court in case of A Venkatasubbiah Naidu (supra) has observed as under:-

"13. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said Rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.

22. Now what remains is the q