IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).NO. 15665 OF 2010(O) ------------------------------------------- AGAINST THE ORDER IN IA 389/2010 IN AS.153/2009 OF SUB COURT, TIRUR .................... PETITIONER(S): ---------------------- MANALOOR NABEESU D/O. MAMMADUNNU, PUNNAYOORKULAM AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): ------------------------- 1. KANHANGATTEL ABDU, S/O. POCKU, PURANG AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. 2. JAMEELA W/O. CHEMBAKASSERI MUHAMMADKUTTY, PURANG AMSOM DESOM, PONNANI TALUK MALAPPURAM DISTRICT. 3. FABEENA W/O. CHEMBAKASSERI ABDUSAMAD, PURANG AMSOM DESOM, PONNANI TALUK MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.15665 of 2010 ==================================== Dated this the 19th day of May, 2010 J U D G M E N T This Writ Petition is in challenge of the order on I.A. No.389 of 2010 in A.S. No.153 of 2009 of the court of learned Sub Judge, Tirur granting mandatory injunction in favour of respondents/plaintiffs. Registry has raised an objection that the order under challenge is appealable one and hence Writ Petition is not maintainable. Learned counsel for petitioner would contend that in view of Section 104(2) of the Code of Civil Procedure (for short, “the Code”) an appeal from that order is not maintainable. But sub-sec.2 of Sec.104 of the Code applied only to cases where the order is passed in an appeal preferred under Sec.104 read with Order XLIII Rule 1 of the Code. In this case the order under challenge is passed in a regular appeal and hence Sec.104(2) has no application. Remedy of petitioner is to challenge the impugned order by way of an appeal under Sec.104 read with Order XLIII Rule 1 of the Code. 2. At this stage learned counsel has sought permission to withdraw the Writ Petition with liberty to file appeal. Having regard W.P(C) No.15665 of 2010 -: 2 :- to the facts and circumstances stated permission is granted. Writ Petition is dismissed as withdrawn without prejudice to the right of the petitioner to challenge the impugned order in appeal subject of course to the law of limitation. THOMAS P. JOSEPH, JUDGE. vsv