D. Sreedevi, J. 1. This CRP is directed against the order of the District Judge in C.M.A.No. 18/99 on the file of III Additional Sub Court, Ernakulam, which was filed against the order dt. 17.6.1999 on I.A.No.2834/99 in O.S.No.690/99 on the file of the II Additional Munsiff's Court, Ernakulam. The learned counsel appearing for the respondent submitted that the CRP is not maintainable as an order in C.M. A. is appealable under O. 43 R. 1(r) C.P.C. According to the learned counsel for the petitioner, S. 104(2) of the CPC specifically bars appeals and hence CRP alone is maintainable. S. 104 deals with appeals from orders. S. 104(2) provides as follows:
"No appeal shall lie from any order passed in appeal under this Section."
The earliest decision on this point is Chellappan and Anr. v. K.P. Varughese & Anr. (AIR 1964 Kerala 23). While dealing with S. 104(2), 107, 115 and O. XLIII R.1 Justice Madhavan Nair held as follows:
"the appeal to the High Court against an interlocutory order passed by a District Judge in an Appeal under S. 104 read with O. XLIII CPC was incompetent and therefore liable to be dismissed in limine;
that as no case for a revision under S. 115 CPC was made out, no useful purpose would be served by a conversion of this appeal into a revision".
The Madras High Court in Kalahasti v. Munuswami Chetti (AIR 1975 Madras 3) held as follows:
"Ss. 107(2), 104, 105 and 43, R. 1, do not have the effect of rendering an appellate court a court of original jurisdiction when exercising its powers to pass incidental orders.
Inasmuch as reference is made to S. 104 in O.43, R.1, right of appeal given against the orders enumerated in O.43, R. 1 will be subject to stipulation contained in S. 104(2). Moreover, because of the use of the words "Original or appellate jurisdiction" in S. 105 the Court can only exercise either original or appellate jurisdiction but not both at one and the same time. Furthermore, the legislature would not have intended to confer the advantage of a second appeal in respect of orders passed under the Code when even appeals from appellate decrees are required to satisfy the conditions laid down in S. 100, Civil P.C."
The Madras High Court in another case Ramaswamy Reddiar & Ors. v. Chinna Sithammal & Ors. (AIR 1976 Madras 63) held that in order to attract S. 104(2), the appeal should be one falling under S. 104. If the appeal is one under S. 96, S. 104(2) is not applicable. O.XLIII R. (i)(t) and (u) provide for appeals against orders passed under one provision or other of O.41, which governs appeals coming under S.96. The said two sub-clauses cannot possibly refer to any order by a trial court. These two provisions would become meaningless if S. 104(2) is made to apply to appeals under S. 96. Goa Daman & Dieu High Court in the decision reported in Domlu Guno Gaudo & Ors. v. Yeshadabai Ganesh Naik & Anr. held that the incidental orders passed by an appellate court in interlocutory applications moved in appeal before it are "orders passed in appeal" within sub-s. (2) of S. 104. Appeal against such orders is incompetent. Our High Court in the decision reported in Moideen Kutty v. Kadalundy Panchayath & Anr. (ILR1991 (3) Kerala 497) held that S. 104 deals with appeals from orders. Clause(1)of S. 104 provides that an appeal shall lie from an order made under Rules from which an appeal is expressly allowed by Rules. Under O.XLIIIR. 1(r), an appeal shall lie from an order passed in an application under O.XXXIX R. 1, R.2, 7 (R. 2A), R. 4 or R.10 for temporary injunction. Sub-s. 2 of S. 104 bars an appeal from an interim order passed in appeal filed under S. 104 CPC. This Court in the decision reported in Somavally v. Appavu Nadar (1980 KLT 907) also held that order of the Appellate Court dismissing injunction application in a Civil Miscellaneous Appeal is not appealable.
2. Therefore, I find that only a revision will lie against the order in CMA under S.115 CPC. Ordered accordingly.