Moideenkutty vs Kadalundi Pachayat and Another

P.K. Shamsuddin, J.—This appeal is directed against the order of the District Court, Kozhikode in I.A. No. 714 of 1991 in C.M.A. No. 44 of 1991. When the appeal was taken, Counsel for Respondents raised a preliminary point that the appeal is not maintainable.

In order to appreciate the point raised, I shall briefly state the facts leading to the filing of this C.M.A. O.S. No. 222 of 1991 was filed by the Appellant for declaration of the right of the Plaintiff to conduct boat service at Chaliam Ferry and also for an injunction restraining the Panchayat from cancelling the auction confirmed in the name of the Appellant. He also moved an I.A. for a temporary injunction, restraining the Panchayat from cancelling the auction in his favour. Initially, an interim order was passed by the Munsiff''s Court granting the relief of temporary injunction as prayed for, but later, it was vacated and I.A. was dismissed. Aggrieved by the said order, the Appellant filed C.M.A. No. 44 of 1991 before the District Court, Kozhikode. He also moved I.A. No. 714 of 1991 for an interim order of injunction restraining the Panchayat from conducting further auction. That application was dismissed by the District Court by its order dated 2nd May 1991. That order has been challenged in this appeal.

Counsel for Respondents contended that no C.M.A. lies against an interim order passed by the appellate court in C.M.A. in view of the bar contained in Section 104(2) of the Code of Civil Procedure. Section 104 deals with appeals from orders. Clause (1) of Section 104 provides that an appeal shall lie from an order made under rules from which an appeal is expressly allowed by rules. Under Order XLIII, Rule 1(r), an appeal shall lie from an order passed in an application under Order XXXIX for temporary injunction. Sub-section 2 of Section 104 bars an appeal from an interim order passed in appeal filed u/s 104 Code of Civil Procedure. It is admitted that C.M.A. No. 44 of 1991 filed before the District Court is an appeal u/s 104 Code of Civil Procedure. The order under attack in this C.M.A. is an order passed in the C.M.A. No. 44 of 1991. In the circumstances, no C.M.A. lies from such an order in view of the bar contained is Sub-section 2 of Section 104. This is the view taken by this Court in Cherian Lookose v. Narayana Pillai Gopala Pillai 1958 KLT 828, Chellappan and Ors. v. K.P. Varghese and Anr. AIR 1964 Mad 23 and in Somavally v. Appavu Nadar 1980 KLT 907. The other High Courts also have taken the same view. See C. Kalahasti Vs. P.C. Munuswami Chetti, , Hari Damu v. Pedro Pereira AIR 1975 Goa 15, Domlu Gunu Gando and Ors. v. Smt. Yeshuda Naik AIR 1978 Goa 31, I am in respectful agreement with the dictum laid down in the above decisions.

Learned Counsel for Appellant brought to my notice the decision of the Madras High Court in Ramaswamy Reddiar and Ors. v. Chinna Sithammal and Ors. AIR 1976 Mad 63 and relying on that decision, contended that C.M.A. is maintainable. In my view, the said decision does not support the contention of learned Counsel. What is held in that decision is that in order to attract Section 104(2), the appeal in which the order was passed should be one falling u/s 104, and that the bar is not applicable to an appeal from an order passed in appeal u/s 96. As indicated above the C.M.A. before the District Court is one filed u/s 104 and therefore Section 104(2) squarely applies to this appeal.

The above discussion would show that the appeal is not maintainable. It is accordingly dismissed. The parties will bear their respective costs.