1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1427/2009 1] Hanumant Ramrao Kulkarni Age 43 years, Occ-Agril 2] Yeshwant S/o Ramrao Kulkarni, Age 35 years, Occ-Agri Both R/o Yousuf Wadgaon, Tq. Kaij, Dist.Beed. .. PETITIONERS VS 1] Vasudeo S/o Ramrao Kulkarni Age 57 years, Occ-Agril 2] Anant S/o Ramrao Kulkarni, Age 55 years, Occ-Agril 3] Vanmala Wd/o Prabhakar Kulkarni Age 51 years, Occ-Agril All R/o Yousuf Wadgaon Tq.Kaij, Dist.Beed. .. RESPONDENTS .... Shri H.P.Jadhav,Advocate for petitioner Shri A.B.Tidke h/f Shri S.S.Thombre,Adv.for respondents 1 and 2. 2 .... CORAM : R.K.DESHPANDE,J. DATE :14/06/2010 ORAL ORDER: 1] This Writ Petition challenges the order dated 5/2/2009 passed by the learned District Judge-II, Ambejogai, dismissing the Miscellaneous Civil Appeal No.59/2003. The original defendants no.3 and 5 who are the petitioners before this Court, were ordered to be detained in civil prison for a period of 1 month for breach of an order of injunction passed by the trial Court under Order 39 Rule 1 and 2 of C.P.C. The order of detention in civil prison was passed in exercise of the powers under Order 39 Rule 2-A of C.P.C. 2] The petitioners preferred Misc.Civil Appeal No.59/03 challenging the order passed below Exh.47 dated 30/10/2003. This Appeal has been dismissed by order dated 5/2/2009 on the ground that it is not maintainable in view of deletion of “Rule 2-A” from Order 43 Rule 1-(r) of C.P.C. 3] Notice was issued in this matter on 24/3/2009 and interim relief in terms of prayer clause “C” was granted staying effect and operation of the order passed by the trial Court directing arrest 3 and detention of the petitioners in civil prison. The parties are served and Shri Tidke,Advocate holding for Shri Thombre, Advocate, appears for respondents 1 and 2. Heard the learned counsel for the parties. None appears for respondent no.3, although served. Since on 24/3/2009 notice was issued and not notice before admission, the instant matter is admitted and the notice accordingly has been served on all the respondents. By consent of the parties, the matter is taken up for final hearing. 4] The undisputed factual position is that the trial Court has passed an order on 13/10/03, directing the arrest and detention of the petitioner in civil prison. This order is passed in exercise of the powers under Order 39 Rule 2-A of C.P.C. Section 104 (1) (h) of C.P.C. deals with appeals from orders and Clause (h) of sub Section (1) is relevant and the same is therefore, reproduced below : “104]Orders from which appeal lies – (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders : (h) an order under any of the provisions of this Code imposing a fine 4 or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; Order 43 Rule 1 of C.P.C. also deals with the appeals from order and the provision is sub servient to the substantive provision of Section 104. Order 43 Rule 1 (r), as it stood prior to 1/10/1983, is reproduced below : “1] Appeal from orders : An appeal shall lie from the following orders under t he provisions of section 104, namely : (r) an order under rule 1, rule 2 (rule 2A), rule 4 or rule 10 of Order XXXIX. By way of amendment, which was made effective from 1/10/1983, “(rule 2A)” of Clause (r) of Order 43 Rule 1 above, was deleted. The learned District Judge, relying on this deletion has held that the appeal filed by the present petitioner challenging the order passed under Order 39 Rule 2A of C.P.C. is not maintainable. He has relied upon the judgment of the learned Single Judge of this Court reported in 2002 (3) Mh.L.J. 448 in 5 the case of Vithal Shriram Kharbadkar V/s Pandurang Irbhanji Kadu 5] It is a fact that there is no amendment to Section 104 (1) (h) of C.P.C. which is reproduced above. In view of the said provision, order passed under Order 39 Rule 2A of C.P.C. is appellable, as it is not an order of arrest or detention passed in execution of a decree. Though there is an amendment to Order 43 Rule 1(r) of C.P.C. deleting Rule 2A of Order 39, there is no amendment carried out in the substantive provisions of Section 104. Hence, right of appeal provided under Section 104 (1)(h) of C.P.C. cannot be taken away inspite of amendment to Order 43 Rule 1(r). The right of appeal subsists and the provision of Order 43 Rule 1 are merely sub-servient to the substantive provision of Section 104 and cannot have an overriding effect to defeat statutory right of appeal contained in substantive provision. In view of this, the learned District Judge was wrong in holding that the appeal is not maintainable. 6] The judgment relied upon by the learned counsel for the respondents in case of Vithal, cited supra, nowhere takes into consideration the provision of Section 104(1) (h) of C.P.C. On the contrary, there is another judgment delivered by the learned Single Judge of this Court reported in 1994 (1) BCR page 366 in Harivilas Madhavprasad Ruia V/s Viraf Ardeshir Udwadia and others, which holds that the appeal is maintainable under Section 6 104(1)(h) against an order passed under Order 39 Rule 2A. The judgment of the learned Single Judge in Vithal’s case cited supra neither does refer to the earlier reported judgment nor does it takes into consideration the substantive provision of Section 104 of C.P.C. Hence, it can safely be termed as rendered per- incuriam. 7] In the result, the instant Petition is allowed. The order dated 5/2/2009 passed by the learned District Judge-II Ambajogai dismissing Miscellaneous Civil Appeal No.59/2003 is hereby quashed and set aside. The learned District Judge-II, Ambajogai, is directed to decide the appeal on its own merits. There shall be no order as to costs. [R.K.DESHPANDE] JUDGE umg/wp1427-09