JUDGMENT B.N. Sapru, J. - An octroi tax was imposed by Nagar Palika, Uttar Kashi. The appellant filed a suit challenging the levy of the octroi and in suit they sought an interim injunction. After hearing the parties, on the application for interim injunction, the Trial Court granted an injunction. The Nagar Palika appealed. In appeal, it appears no application for stay was filed but a date for hearing of the appeal was fixed. There are rival versions before this Court as to exactly what transpired in the appellate court. But it.is certain that the hearing of the case was adjourned and the operation of the injunction issued by the Trial Court was stayed. 2. Aggrieved the appellants have filed the instant appeal. A preliminary objection has been raised to the maintainability of the appeal. It is submitted by the respondent that the appeal itself is not maintainable. It is urged that the appeal is barred because the order that is impugned, is an order passed in an appeal. Reference is made in this connection to Section 104(2) of the Code winch provides that no appeal will lie against an order which is passed in appeal. 3. The learned counsel for the appellants has urged that the order of the appellate court cannot fall within Order XLI, Rule 5 of the Code and it must necessarily be an order refusing an injunction and as such is appealable under Order XLIII, Rule 1 (r) of the Code. 4. In the case of Challapan and another v. K. Varughese and another, {AIR 1964 Kerala 23), it was held that the power given to an appellate court under Section 107 of the Code is only part of its appellate jurisdiction. It cannot be characterised as an original jurisdiction in an appellate court. That had happened was that during the pendency of a suit an application for interim injunction was made. An interim injunction was issued but after hearing both the sides, the Trial Court discharged it. Against that order the appellant preferred an appeal and sought a temporary injunction but the application was dismissed by the Appellate Judge and against that order an appeal was filed in the High Court. The Kerala High Court held that the appeal was not maintainable. 5. Against that order the appellant preferred an appeal and sought a temporary injunction but the application was dismissed by the Appellate Judge and against that order an appeal was filed in the High Court. The Kerala High Court held that the appeal was not maintainable. 5. The next decision relied upon by the learned counsel for the respondent is the case of C. Kalahasti v. P.C. Munuswami Chetii, (AIR 1975 Madras 3) wherein it was held that an order passed by appellate court under Order XXXIX, Rule 1 of the Code cannot be construed as an order passed by the Court in exercise of its original jurisdiction. It was held that as such the order was not appealable under Order XLIII, Rule 1 of the Code. 6. In view of these authorities, it is clear that the appeal is not maintainable. 7. The learned counsel for the appellant has made a grievance that the appellate court had vacated tho injunction without giving him a proper bearing. I understand that the appeal is fixed for 26-2-1981. The Court should try and dispense of the appeal on that date. 8. In the result, the appeal fails and is dismissed with cost and the interim order dated 11-12-1980 is vacated.