CELIN Vs. THOMAS JOHNSON

JUDGEMENT

(1.) The petitioners are the plaintiffs in a suit filed by them against respondents 1 and 2. The suit is one for permanent prohibitory injunction. An application for temporary injunction was filed. The said application was allowed and confirmed after hearing the parties. The respondents 3 and 4 later got themselves impleaded on the allegation that the petitioners/plaintiffs had filed the suit without showing them on the array of parties. They contended that they were essential and necessary parties considering the nature of the relief claimed. That petition was considered and the court allowed their impleadment. Thereafter, respondents 3 and 4 filed an application under O.39, R.4 read with S.151 of the C. P. C. to modify/ vary/set aside the order passed earlier at a time when they had not come on record, against respondents 1 and 2. The court below considered the said petition and by the impugned order produced as Ext. P9 invoking the powers under O.39, R.4 of the C. P. C. allowed the said application and vacated the earlier order passed.

(2.) The petitioners have rushed to this Court with this writ petition. The learned counsel for the petitioners was requested to explain how and why the petitioners are coming to this Court with this writ petition without and before exhausting the remedy available to them under O.43, R.1(r). The Order passed under O.39, R.4 is made appealable under that provision.

(3.) The learned counsel for the petitioners submits that the impugned order cannot be held to be one passed under O.39, R.4. It is passed only under S.151 of the C. P. C. notwithstanding the fact that the petition shows O.39, R.4 also as an enabling provision.