BUDDANA SURYACHANDRA RAO Vs. PALA LAKSHMI KANTHAMMA

JUDGEMENT

(1.) The short question that arises for consideration in this revision is, whether appeal Order 43 Rule 1 of the Code of Civil Procedure (for short "the Code") is maintainable against the order issuing notice in IA filed under Order 39 Rule 1 of the Code?

(2.) The revision petitioner who is defendant in the suit filed the present revision petition under Article 227 of the Constitution of India to review the judgment passed by the Senior Civil Judge, Tadepalligudem dated 12-7-2005 CMA No.2/2005, whereunder learned Judge modified the order passed by the Principal Junior Civil Judge, Tadepalligudem dated 23-6-2005 in IA No.856/2005 in OS No.278/2005 directing that interim injunction orders dated 19-5-2005 shall continue till the disposal of said IA.

(3.) The respondent-appellant-plaintiff filed suit OS No.278/2005 before the Vacation Court for permanent injunction, in which, she obtained an ex parte injunction in IA No.856/2005 on 19-5-2005 till 7-6-2005. On reopening of the Court, the plaintiff filed an application, before the trial Court, seeking extension of the interim order dated 19-5-2005 granted by the Vacation Court. But the same was not called by the trial Court for want of record. On 23-6-2005 while ordering urgent notice observed that interim injunction granted till 7-6-2005 has not been extended and certified copy of ex parte injunction order dated 19-5-2005 granted by the Vacation Court has not been filed along with the extension petition and posted the matter to 30-6-2005. Questioning the correctness of the same, the plaintiff filed CMA No.2/ 2005 before the Senior Civil Judge, Tadepalligudem, who after holding that without calling the matter on 7-6-2005 on the Bench, the appellant-plaintiff cannot have an opportunity to file extension petition on 7-6-2005, and for the fault of the office it cannot be found that injunction cannot be extended subsequent to 7-6-2005 and it is a fit case to grant interim injunction till the disposal of IA No.8456/2005/, modified the orders dated 23-6-2005 passed by the Principal Junior Civil Judge, Tadepalligudem dated 23-6-2005 in IA No.856/2005 in OS No.278/2005 directing that interim injunction orders dated 19-5-2005 shall continue till the disposal of IA No.856/2005, and trial Court was directed to dispose of the said IA within 30 days from the date of filing of the counter. Questioning the legality and validity of the said judgment, the present revision petition is filed contending that since against order, issuing notice, passed by the trial Court is not an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order 39 of the Code no appeal lies, therefore impugned judgment passed by the lower appellate Court cannot be sustainable for want of jurisdiction and the same is liable to be set-aside.