Mrs. Rabiam Bi and Another vs Mr. Ramaswamy S. L. Naik

R.C. Chavan, J.—Heard Counsel. Though learned Counsel for the respondent had objection on tenability of the application, arising out of disposal of an objection to tenability of Misce. Civil Appeal by learned District Judge, this revision can be disposed of by observing that initially, application, on which learned Civil Judge has passed an order, and which was taken up in Misce. Civil Appeal before the Ad hoc District Judge, should itself have been treated as one under Order XXXIX Rule 1 of CPC and not u/s 151 of Civil Procedure Code. Parties in the mofussil invoke whatever provisions may be in their mind, but it is for the Court to decide which powers can be exercised. In the face of specific provision in Order XXXIX of the Code, which should have been invoked to remedy the grievance put up by the respondent, there was no occasion for invocation of jurisdiction u/s 151 of Civil Procedure Code. Section 94 of C.P.C. provides for grant of injunction by the Courts, in the manner prescribed and that manner is prescribed under order XXXIX. Therefore, merely because an application is made u/s 94 of the C.P.C., it does not take that application out of the scope of Order XXXIX of the Code. Only if such an application is taken out of scope of Order XXXIX, would appeal under Order XLIII, be debarred. Since the application can and should have been treated as one under Order XXXIX, whatever decision was rendered thereupon, was to amenable to appeal under Order XLIII. Learned Counsel for the respondent does not dispute this proposition. With these observations, revision is disposed of. Learned Judge of the First Appellate Court would dispose of the appeal as arising out of an order passed under the provisions of Order XXXIX of C.P.C.