CHOORAKADAN ALIAS RAYYAPPADAN SANKU Vs. ANTONY

JUDGEMENT

(1.) The short question that arises for consideration in this second appeal is whether a party aggrieved by the dismissal of an application under O.39 R.2A of Civil Procedure Code filed for taking action for disobedience or breach of injunction, can challenge the same in an appeal filed under O. 41 R.1 against the original decree, without recourse to a seperate appeal as provided under O.43 R.1 (r) of the code.

(2.) As against the dismissal of the suit, the respondent preferred A.S. 42 of 1985 before the District Court, Trichur under O.41 R.1 of Civil Procedure Code In the appeal memorandum the respondent challenged the propriety of the dismissal of LA. Nos. 1925/82 and 621/83. As ground No.21 of the appeal memorandum in A.S. 42 of 1984 the respondent herein contended that the reasons given by the Trial Court for disbelieving the evidence of witnesses examined for proving the violation of injunction order are baseless and devoid of merit. The lower appellate court interfered with the decree and judgment of the Trial Court and decreed the suit as prayed for, restraining the appellants herein from trespassing into the property for cutting open a new road through the property of the respondent. As regards the dismissal of I.A.Nos. 1925/82 and 621/83 by the Trial Court, the lower appellate court held that the appellants herein had violated the ad interim injunction and therefore proceedings have to be initiated against the appellants. The orders passed in I. A.Nos. 1925/82 and 621/83 were set aside and the Trial Court was directed to take further action in the matter. The present appeal relates to the interference made by the lower appellate court as regards the orders passed in 1-A.Nos. 1925/82 and 621/83. As against the judgment and decree passed by the lower appellate court no appeal has been preferred by the appellants.

(3.) It is common case that I.A.Nos. 1925/82 and 621/83 were filed under O.39 R.2A of Civil Procedure Code and the relief sought for by the plaintiff was to punish the present appellants for the disobedience of the interim injunction gran ted by the court. These two applications were considered along with the suit and findings have been separately entered in the judgment. An order passed under O.39 R.2A is made appealable and an appeal would lie under O.43 R.1(r). Admittedly A.S. 42/84 on the file of the District Court, Trichur was not filed under O.43 R.1(r) of the Civil Procedure Code As already pointed out, A.S.42/82 was filed under O.41 R.1 of the Code and the learned counsel for the appellants contends that in an appeal filed under O.41 R.1 of the Code the orders passed under O.39 R.2A cannot be challenged. Attention was drawn to S.105 of the Civil Procedure Code which reads as follows: