PATRAM Vs. RAMESHWAR DAYAL

JUDGEMENT

(1.) L . This order shall govern the disposal of civil Revision No. 669 of 1976 also, the point involved in which is also the same and the parties too are common.

(2.) THE facts giving rise to both these revisions are that the applicants instituted a suit against the non applicant for cancellation of a sale deed on the allegation that the same was executed for the collateral purpose of securing the payment of loan and was not a real sale -deed intended to be acted upon as such. It was also alleged that the same was got executed or the document was not for the purposes of effecting the sale any was only by way of security. During the pendency of the suit the defendant non -applicant moved an application under Order 29 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for grant of temporary injunction on the allegation that since the defendant is in cultivating possession of the suit land from the date of purchase, the plaintiff be restrained from interfering with his possession.

(3.) THE trial Court however, by applying the principles of Order 39 rules 1/2 CPC for grant of temporary injunction, i.e. balance of convenience irreparable injury and prima facieness of the case, passed an order restraining the plaintiffs from interfering with the possession of the defendant. The present applicant plaintiff, however, preferred an appeal before the lower appellate Court. On behalf of the non -applicant, an objection was raised about the maintainability of appeal by contending that since the trial Court had specially made a mention of section 151 of the Code of Civil Procedure while granting the temporary injunction, the same amounted to an Order under section 151 CPC and as such was not appealable under Order 43 despite the fact that the same was issued in the nature of a temporary injunction by applying the principles of Order 39, rules 1 and 2 C.P.C. The objection prevailed upon the lower appellate Court and the appeal of the applicant -plaintiff was dismissed as not tenable. The lower appellate Court accordingly did not consider the case on merits. The applicants have now preferred revisions (No. C.R. 657/76 and No 669/76).