MUHAMMED KUNHI Vs. ABDUL SALAM

JUDGEMENT

(1.) Appellant is the plaintiff. Injunction application filed by him was allowed by the Trial Court. Against that defendants (respondents) filed CMA before the Sub Court. In that CMA defendants sought injunction against the plaintiffs. That was granted by the Sub Judge. The present CMA is filed against the order of the Sub Judge in the interlocutory application

(2.) Defendants have raised a preliminary objection to the maintainability of the appeal. They contended that the CMA is not maintainable in view of the bar contained in S.104(2) of the Code of Civil Procedure.

(3.) Appeals from orders not amounting to decrees are dealt with in S.104 of the Code of Civil Procedure. S.104(1)(i) makes the position clear that any order made under rules from which an appeal is expressly allowed by rules is appealable. S.104(1) states that appeals shall lie from orders which are expressly mentioned in the Section. O.43 R.1 mentions the orders from which appeals could be filed under S.104. O.43 R.1(4) enables a party to file appeal against orders under R.1, 2, 2A, 4 or 10 of O.39. When such an appeal is filed before the appellate Court a party can seek interim injunction by filing interlocutory application before that Court. The question for consideration is whether the order of the appellate court in an interlocutory application can be challenged before the High Court by filing appeal under S.104. S.104(2) categorically provides that no appeal shall be from any order passed in appeal under the section. Contention of the plaintiff that order on interlocutory application by the lower appellate court will not be hit by S.104 is not tenable. A reading of S.104(2) makes the position very clear that no appeal can be entertained from any order passed in an appeal under S.104.