^^ J/ %• HIGHCOURTOFCHMATTISGARH:BILASPUR rh^ 11 & ^ SingieBench : Hon'ble Shri Dilip RaoSaheb Deshmukh, J. MISC. APPEAL (P.R.V N0. 3498 of 2008 A6pellant Plaintiff Resbondents Defendants Imalchand, Swarnkar, aged about 55 years, S/o late Shri Bhagwati Prasad Swarnkar, R/o Gandai Pahdaria, District Rajnandgaon presently at Assistant Accounts Officer, Chhattisgarh State Co-operative Marketing Federation Ltd. Behind Rinki Plastic, Dilip Shrivastava Building, Shyam Nagar, Raipur (C.G.) VERSUS 1) Nagar Panchayat, Gandai Pandariya, Tahsil Chhuikhadan, through Chief Municipal Officer, Nagar Panchayat, Gandai Pandaria. 2) O.P.Thakur, Chief Municipal Officer, Nagar Panchayat, Gandai Pandaria. Appeal under0rder43 RuleJ (r) bf the Civil Procedure Code Present : - Shri H.B.Agrawal, Senior Advocate with Ms, Rinki Tamrakar, counsel for the appellant. ORAL ORDER (Passed onthis 11th day of December, 2008) Meard on application for amendment in the cause title. 2. Application is allowed and the amendment be incorporated today. 3. Heard on the objection as to maintainability ofthe appeal. 4. This is an appeal preferred by the unsuccessful plaintiffwho is r^ aggrieved by the order of reversal in Misc. Civil Appeal No.02/2007 dated 20.11.2008 by Additional District Judge, Khairagarh, of the grEint of temporary injunction by thetrial Court in Civil SuitNo. 01A/2007order dated 13.04.2007 by the Civil Judge, Class-l, Khairagarh, District Rajnandgaon in hisfavour. 5. The Registry has raised an objection that the appeal is not maintainable and has placed this matter before the Court for adjudication on the maintainability ofthe appeal. 6. Brieffacts are that by order dated 13.04.2007 passedinCivil Suit No. 01A/2007 by the Civil Judge, Class-l, Khairagarh, District Rajnandgaon, the application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure (henceforth 'the Code') filed by the appellanVplaintiff was allowed and a temporary injunction againstthe defendants was granted. Aggrieved by the said order, the defendants preferred a Miscellaneous Appeal(Misc. Civil Appeal No. 02/2007) before the Additional District Judge, Khairagarh. Vide order dated 20.11.2008, the appeal was allowed and the order passed by the trial Court was reversed. Aggrieved by the said order, the appellant/plaintiff has preferred this appeal. 7. Placing heavy reliance on P.S. Sathappan (dead) by L.RS. vs. Andhra Bank Ltd. ahd others, (2004) 11 SCC 672, Shri H.BASrawal, learned Senior Advocate argued that undersection 104 (2)ofthe Code, only such appeals are barred as are not saved bysub-seetion (1) of Section 104 ofthe Code. LearnedSenior Counsel further argued thatthe present appeal is saved undersub-elause (i) of sub-section (1) of Section; 104oftheCode. ^ \^) 8. For understanding the true import of Section 104 of the Code, it is necessary to quote certain provisions. Section 104 of the Code reads as under: "104. Orders from which appeal lies.—(1) An appealshall lie from the following orders.andsaveas otherwise expressly provided in the bfldy of this Code 6r by any law for the time being in force, from nb other orders:-- (ff) an order under section 35A; (ffa) and order under section 91 or sectioh 92 refusing leave to institute a suit of the nature referred to in section 91 orsectiOn 92, as the case maybe; an order under section 95; (9) (h) (i) An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in k- ; . • '. '. • . . • .• the civil prison of any person exceptwhere such arrest or detention is in execution of a decree; any order made uhder rules from which anappeal is expressly allowed by rules: Provided that no appeal shall lie against order specified in clause (ff) save oh the ground that np order, or an order for the payment of a less amount, oughtto have been made. (2) No appealshall lie from ahy brder passed in appeal under this section." The word "rules" used in sub-clause (i)Ofsub-section (1) ofSection 104ofthe Codealso needsto be understood. Theword "rules" isdefined \ • . . • ' •.' • •• • . • • • • ^ under Section 2(18) oftheCode, which reads as under: "2(18): "rules" means rulesand forms contained in the First Schedule or made under section 122 of section 125;" 5 •<D §f 9. In P.S.Sathappan (supra), the Supreme Court has held that sub- section (2) of Section 104 of the Code bars only such appeals as are not saved by sub-section (1) of Section 104 of the Code. Therefore, the moot question is whether the present appeal issaved under Sectioh 104 sub- section (1) read with sub-clause (i)ofthe Code. Againstan ordermade under Rule 1 and 2 of Order XXXIX of the Code, an appeal is expressly allowed bythe rules i.e. OrderXLIII Rule 1 (r) ofthe Code which provides for an appeal against an order under Rule 1, Rule 2, Rule 2A, Rule4 or Rule 10 of Order XXXIX of the Code. Clause (i) of sub-section (1) of Section 104 of the Code also provides for an appeal against any order under the rules which covers any order passed under Order XXXIX Rule 1 and 2 of the Code. However, under Section 104 sub-section (2) ofthe Code no appeal lies from any order passed in appeal. It is clear that an appeal against any order passed in appeal under Order XLIII Rule (1) (r) or under Section 104(1)(i) of the Code is not saved either by the Code of Civil Procedure or by any law for the time being in force. \n Motilal and another v. Bhandari, 2001 (2) BU 194, a similarviewhas been taken that a miscellaneous appeal against an appellate order granting injunction is not maintainable being specifically barred under section 104(2)0fthe Code. Thisjudgment also lends full support to the viewtakeh by me. 10. The case law cited by the learned Senior Coynsel for the appellant does not help the appellant. In that case.section 39ofthe Arbitration Act specifically barred a second appeal. The question was whether a Letters Patent Appeal was also barred in viewof theSection 104 (2) of the Code. It was held in paragraph 148 (3) of the judgment that if an appeal is maintainable under sub-section (1) of Section 104 oftheCode, no further. 4, Anjani appeal therefrom would be maintainable in terms of sub-section (2). It was further held that clause 15 Of the Letters Patent cannot override the bar created under Section 104(1) Of the Code. During the course of arguments, learned Sehior Counsel for the appellant had tried in vain to buttress the point by reading some portions of the judgment. However, in paragraph 148 (8) the Supreme Court has clearly observed that "the judgment of this Gourt must be read as a whole and the ratio therefrom is required to be culled out from reading the same inits entirety and not only a partofit." 11. In the result, the appeal being an appeal against an order passed in appeal not having been saved under sub-section (1) of Section 104 of the Code is not maintainable. It is accordingly dismissed. 12. In view of the above, applications for grant of stay stand disposed of. Certified copy of the impugned order dated 20.11.2008 be returned to the counsel for the appellant onfurnishing Xerox copy ofthe same Certified copy as per rules. 1 §^y_ Dilip Raosalieb Deshinukh Judge ^