M. Madhavan Nair, J.
1. The appellants are the plaintiffs in a suit for injunction to restrain execution of a decree obtained by the 1st respondent for eviction of the 2nd respondent from a piece of land 13i cents in extent. That decree was by the Subordinate Judge, Ernakuiam, affirmed on appeal by this Court on January 25, 1963. On February 28, 1963, the appellants instituted the present suit claiming 8 out of the 13 1/2 cents as been dedicated by the 1st respondent's vendor and given possession to the 2nd respondent in 1946/1947 for putting up a temple for Lord Subran-monia who was made no party to the decree, and applied tor a temporary injunction to restrain execution proceedings moved by the 1st respondent. Though an interim injunction was ordered thereon, the Subordinate Judge has, after nearing both sides, discharged the same. Against that order, the appellants have preferred C.M.A. No. 23 of 1963 in the District Court, Emakulam, and by an interlocutory application therein sought a temporary injunction to restrain the 1st respondent from executing his decree; but that application was dismissed by the District Judge by an order dated April 6, 1963. This Civil Miscellaneous Appeal is against the last mentioned order.
2. Counsel for the 1st respondent raised a preliminary objection to the maintainability of this appeal; and it has been argued at length by both sides.
3. Appeals from orders, not amounting to decrees, are dealt with in Section 104 C.P.C. and the rules mentioned therein are in Order 43 in the First Schedule of the Code. Admittedly the C.M.A. No. 23 of 1963 betore the District Judge is an appeal under those provisions. Sub-section (2) of Section 104, C. P. C., enacts:
'No appeal shall lie from any order passed in appeal under this section.'
It follows that if the impugned order is an order passed in the C.M.A. before the District Judge, it will be within the inhibition of the above sub-section.
Counsel for the appellants contends that the application for temporary injunction moved before the District Judge was one under Order 39 Rule 1 CP.C. and therefore its disposal is not an order in the appeal but an order in exercise or his original jurisdiction under Section 107 C.P.C. The last mentioned section provides that an appellate Court
'shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein'.
in the present case, an application for temporary injunction ; was moved in the suit before the Subordinate Judge and has been disposed of by him. Against that disposal a Civil Miscellaneous Appeal is preferred before the District Judge and it is still pending disposal by him. The District Judge is thus seized of the matter in appeal, that is in exercise of his appellate jurisdiction. It was as an inci-dental relief in that appeal that the appellants moved a second application for temporary injunction whose dismissal is the subject of appeal herein. The power given to an appellate Court under Section 107 C.P.C. Is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate Court. It confers power on the appellate Judge not only to dispose of the appeal on its merits, but also to pass any interlocutory or incidental orders deemed necessary hi the circumstances of the case to maintain the status quo, or to preserve the subject-matter of the appeal till the disposal of the appeal as an original Court is empowered to do in the case of suits before it. The incidental orders passed by an appellate Court in interlocutory applications moved in an appeal before it are 'orders passed in appeal' within the scope of Section 104(2) C.P.C. and cannot therefore be appealed against.
4. in Mt. Umatur Robab v. Mahadeo Prasad, AIR 1941 All 338 the dismissal of an application to set aside the abatement of a Civil Miscellaneous Appeal under Order 43 Rule l(s) was held to be non-appealable as per suD-sectiom (2) of Section 104 C.P.C.
In Cherian Lookose v. Narayana Pillai Gopala Piliai. 1958 Ker LT 829 a like C.M.A. was dismissed for detauit, and an application for its restoration was also dismisses it was held that Section 104(2) CjP.C. barred an appeal against the latter order.
I am in respectful agreement with the dicta in the above cases, particularly because of the generality of the words 'any order' in Section 104(2) C. P. C,
(5) Counsel for the appellants placed strong reliance on the observations of a single Judge in Shop of B. R. Lachayya v. Rechintala Veeriah, AIR 1961 Andh Pra 112 where His Lordship has held that only orders of a final nature would come within the purview of Section 104(2) C.P.C. and that therefore an order dismissing a C.M.A. 29 incompetent under Order 43 Rule 1 could not be witnin the inhibition of that sub-section. I am afraid, to construe the words 'any order' in Section 104(2) as meaning any final order is to add words to the enactment which a Court is not empowered to do. In my view, 'any order' means any order whether final or interlocutory or otherwise.
Counsel for the appellants cited L. D. Meston School Society v. Kashi Nath Misra, AIR 1951 All 558, Aboui Rahiman Saheb v. Ganapathi Bhatta, ILR 23 Mad 517 ana Hurrish Chunder Chowdry v. Kalisundari Debi, 10 Ind App 4 (PC). None of those rulings has considered the appeals-bility of interlocutory orders passed in Civil Miscellaneous Appeals under Section 104 read with Order 43 C. P. C. Those rulings are therefore, of no help in the present case. This C.M.A against an interlocutory order passed by a District Judge in an appeal under Section 104 read with Order 43 C.P.C., has to be held incompetent and therefore liable to be dismissed in limine.
6. Counsel prayed that this C.M.A. may be converted or treated as a C.R.P. and decided accordingly. In order to accept it as a Civil Revision Petition, it must come within the scope of Section 115 C.P.C., in other words, the complaint must be of an exercise of jurisdiction which is not vested in the Court below, or of non-exercise of a jurisdiction vested in it, or of some material defect of procedure amounting to an illegal or materially irregular exercise of its jurisdiction. None of those grounds is made out in this case. Counsel contended that the Courts below have committed a material irregularity in procedure wnen they held concurrently that the appellants have not made out a prima facie case without adverting to the material averments in the suit, and on such finding disallowed the relief of temporary injunction. I do not see any force in this contention.
The case of the appellants is that the plaint property was entrusted by the 1st respondent's vendor to the 2nd respondent in 1122 M. E. (1946/47) for the purpose or constructing a temple for Lord Subrahmonia. There is no record of that entrustment. The appellate judgment of this Court in the suit between the 1st and 2nd respondents has been produced in this case. It shows that the 2nd respondent, though he had contested that suit and preferred an appeal therein before this High Court, never said a word about any entrustment to him for putting up a public tempie as flow alleged in this suit by the appellants. It is in evidence that the property had been let to the Ernakuiam Municipality in 1952/53 for conducting a market thereon. There is also the circumstance that the present suit has been instituted only when execution proceedings were moved by the 1st respondent for eviction of the 2nd respondent from the property. It cannot be said in the above circumstances that the Courts below have overlooked the appellant's case in holding that no prima facie case has been made out by them to entitle the extraordinary relief of an injunction to restrain execution of a decree passed by the High Court.
Counsel for the appellants contended that the view of the Courts below that a prima facie case must necessarily be made out to sustain a motion for temporary injunction in a suit is incorrect in law and relied on Bishambar Natrt Jaithy v. Municipal Committee, Delhi, AIR 1926 Lah 589, Deochandra Prasad Singh v. AmfHendu Mukherji, AIR 1958 Pat 146 and Rajalakshmi Amma v. Kunjipillai Amma, 1959 Ker LT 161: (AIR 1959 Ker 277) in support. I do not see anything in the above decisions to support his contention. In the last mentioned case a learned Judge of this Court. reversed an order granting a temporary injunction on a. mere finding of prima facie case for the plaintiffs witnout considering necessity to preserve the status quo, the balance of convenience or the likelihood of an irreparable injury to justify the grant. It is an authority for the proposition that the plaintiff claiming a temporary injunction must show at least three things, namely, a prima facie case on his side, a balance of convenience in his favour and a likelihood of irreparable injury to him in case of non-issue of the injunction. It does not lay down that a plaintiff can claim a temporary injunction without making out a prima facie case in his favour. As no case for a revision under Section 115 C.P.C. Is made out, no useful purpose would be served by the conversion of this C.M.A. Into a C.R.P. The prayer for such conversion is therefore disalllcwed.
7. The C.M.A. fails and is dismissed hereby.