SHIVAJI SHANKAR JADHAV Vs. LAXMAN GAJANAN GODBOLE

JUDGEMENT

(1.) In this Appeal from Order, a short point of maintainability, whether the order passed below application for interim injunction made under Order XXXIX (O.39) Rules 1 and 2 of the Code of Civil Procedure,1908 (hereinafter referred to as "the CPC") in Regular Civil Appeal filed under Order XLI (O.41) of the CPC is appealable under Order XLIII (O.43) Rule (1) sub-rule (r) of the CPC., is raised. It is purely a procedural issue.

(2.) In the present matter, the judgment and decree passed by the trial Court in the Suit is challenged in Regular Civil Appeal filed under Order 41 of the CPC. The Application for interim injunction was preferred pending Appeal. Under Order 39 Rules 1 and 2 of the CPC, the Court has power to grant temporary injunction. Therefore, this interim application for injunction which is called generally in District Judiciary as Exhibit 5 was made in Regular Civil Appeal filed under Order 41 of the CPC. The said application was allowed by the First Appellate Court; hence, this is the Appeal under Order 43 of the CPC.

(3.) Mr.Anturkar, the learned Senior Counsel, has submitted that the interim order in appeal is not incorporated in the list of Rule 1 of the Order 43 of the CPC, hence, this Appeal is not maintainable under the said Order. In support of his submissions, he relied on the judgments of two Division Benches of this Court in the cases of Krishna Yeshwant Shirodkar vs. Subhash Krishna Patil reported in 1988 Mh.L.J.327 and also in the case of Robert Punaji Salvi vs. Bombay Diocesan Trust Association Pvt.Ltd . reported in 1995 (2) Mh.L.J.679. He has further submitted that the learned Singe Judge of this Court in the case of Shobha Dinesh Supare and another vs. Dinesh Namdeorao Supare reported in 1993 (1) Mh. L.J 910 has held that if the order of temporary injunction is passed under Order 43 Rule 1 of the CPC, then such order is not appealable under the provisions of Section 104 (2) of the CPC. He has fairly pointed out that the learned Single Judge of this Court has taken a different view earlier in the case of Krishna Pandurang Wankhede Versus Sitaram Punjaji Wankhede reported in 1985 SCC Online Bom 267 that the order passed on application for temporary injunction in Regular Civil appeal filed against the decree is appealable under Order 43 Rule 1 sub-rule (r) of the CPC. He has further pointed out that this view was further reiterated by the two Single Judges of this Court in Writ Petition No. 6166 of 2009 in the case of Shri Shivaji Shankarrao Patil versus Dnyanu Manu Patole dated 27th July, 2009 and also in Writ Petition (Stamp) No. 31823 of 2014 in the case of Shri Subhash Sheti Pawar versus Sou. Minkashi Ravindra Zadbuke & ors., dated 17th March, 2015.