JUDGMENT - R.A. JAHAGIRDAR, J.:---The appellant has filed a suit in the City Civil Court at Bombay, being S.C. Suit No. 304 of 1987. The suit was filed for an injunction restraining the defendants from entering into the suit premises which are business premises where the plaintiff was conducting a business described as hotel business. In practise it means a business where drinks and eatables are served to the customers. In that suit he took out a Notice of Motion bearing No. 2630 of 1987 and another Notice of Motion bearing No. 285 of 1987. These notices of motion are dated 27th of April, 1987 and 6th of January, 1987 respectively. Notice of Motion No. 2630 of 1987 was for appointment of a receiver in respect of the suit property. 2. Before we proceed to mention the circumstances leading the parties to this Court, it would be necessary to briefly mention the facts which led the appellant, hereinafter referred to as "the plaintiff" to file the suit in the City Civil Court. The plaintiff had come in possession of the suit premises under an Agreement of April 1969 entered into between the plaintiff and one Krishna Patil. On 1st of May, 1969 this agreement was reduced to writing. The plaintiff contained to be in possession of the suit premises till the middle of 1976. In the meantime, on 4th of February, 1976 Krishna Patil, the original person with whom the plaintiff had entered into the agreement, expired. Thereafter on 1st of May, 1976 the plaintiff entered into another agreement, described as the conducting agreement, with Subhash Krishna Patil, who is the son of Krishna Patil. He is defendant No. 4 in the suit. 3. It is alleged in the plaint and it seems to be admitted between the parties that the building in which the suit premises are situated were in a dilapidated condition and the tenants formed themselves into an association for repairing the entire building. Of the contribution towards the repairs the plaintiff has paid a sum of Rs. 18,000 - Rs. 12,000 2nd of December, 1985 and Rs. 6,000 on 12th of December, 1985. Defendant Nos. Of the contribution towards the repairs the plaintiff has paid a sum of Rs. 18,000 - Rs. 12,000 2nd of December, 1985 and Rs. 6,000 on 12th of December, 1985. Defendant Nos. 2 and 3 in the suit were authorised on behalf of the tenants of the building to carry out the repairs and they have passed receipts acknowledging receipt of the amounts paid by the plaintiff, though the receipts are undoubtedly in the name of defendant No. 4. 4. A note may also be taken of some parallel proceedings. The sister of defendant No. 4 had filed a suit in the City Civil Court for maintenance after the death of Krishna Patil. That suit was filed against defendant No. 4. The plaintiff has also been made a party in that suit. It has been mentioned that in that suit the plaintiff has deposited a sum of Rs. 10,000 which amount was probably to be paid to the plaintiff in that suit. 5. The 4th defendant has also filed a suit in the Small Causes Court against the present plaintiff for possession of the suit premises. That suit is said to have been filed for possession on the ground of non-payment of compensation or at least a prayer was made for the recovery of the amount of compensation which was allegedly not paid by the plaintiff. That suit was withdrawn on 5th of December, 1986. The present suit has been filed on 14th of January, 1987 and the notices of motion mentioned above were taken out by the plaintiff. 6. The question before the learned trial Judge was who was in possession of the suit premises on the date of the suit. The learned trial Judge, after considering the entire material which was placed before him, has given a very lucid and elaborate judgement in which he held that the plaintiff has proved that he was in possession of the suit premises on 14th January, 1987. The learned Judge had appointed a Commissioner who visited the suit premises on 24th of April, 1987. The Commissioner had in his report stated that defendant No. 4 was found to be carrying on the business of selling tea along with Mrs. Maria D'Souza, who was joined in the suit as defendant No. 5. That there were some of the belongings of the plaintiff in the suit premises was also noted by the Commissioner. The Commissioner had in his report stated that defendant No. 4 was found to be carrying on the business of selling tea along with Mrs. Maria D'Souza, who was joined in the suit as defendant No. 5. That there were some of the belongings of the plaintiff in the suit premises was also noted by the Commissioner. The learned trial Judge considered the report of the Commissioner, appreciated the probabilities of the case, and came to the conclusion as mentioned above, that the plaintiff was in possession of the suit premises on the date on which the suit was filed. Till the time the learned trial Judge gave his judgment disposing of the two notices of motion, defendants Nos. 4 and 5, undoubtedly, had made certain alterations in the suit premises; may be, they had invested some amount also. But that itself was not a ground as to why defendants Nos. 4 and 5 in particular should be allowed to continue in possession of the suit premises. The learned trail Judge, in paragraph 27 of this judgment, has mentioned that since defendants Nos. 2, 3, 4 and 5 have attempted to take over the possession of the suit premises and have also attempted to disturb the status qua which obtained on the date of the filling of the suit, it would be just and convenient and absolutely necessary that Court Receiver, High Court, Bombay, be appointed receiver of the suit premises. Accordingly he made absolute Notice of Motion No. 2630 of 1987 by appointing the Court . Receiver, High Court as receiver of the suit premises with all powers under Order 40, Rule 1 of the Code of Civil Procedure. He directed the Court Receiver to take possession of the suit premises and to appoint the plaintiff as his agent to remain in possession of the suit premises. This he did by his judgment and order dated 29th of September, 1987, which was challenged by defendants Nos. 4 and 5 in Appeal from Order No. 1007 of 1987. 7. The said Appeal from Order No. 1007 of 1987 was admitted. In that appeal, defendants Nos. This he did by his judgment and order dated 29th of September, 1987, which was challenged by defendants Nos. 4 and 5 in Appeal from Order No. 1007 of 1987. 7. The said Appeal from Order No. 1007 of 1987 was admitted. In that appeal, defendants Nos. 4 5 also filed a civil application, being Civil Application No. 6208 of 1987 for stay of the order of appointment of receiver passed by the learned trial Judge, Mehta, J., by his order dated 7th December, 1987 in Civil Application No. 6208 of 1987 thought it appropriate to modify the order passed by the learned trial Judge, which he did as follows : "To my mind, an appropriate order would be to permit the Court Receiver, who has already been appointed, to take charge of the premises and to hand them over to the petitioners on usual terms and conditions as the Court Receiver's Agents. The petitioners will deposit in Court a sum of Rs. 2,000/- per month subject to further orders from the Court." 8. From what has been stated above it is clear that Mehta, J., confirmed the order of appointment of the Court Receiver, but modified the direction regarding who should be the agent of the receiver. Against this order the present Letters Patent Appeal has been preferred by the original plaintiff. The earlier Division Bench which admitted this appeal left open the question of the maintainability of the Appeal to be decided at the time of its final hearing. In this appeal, the plaintiff-appellant made an application, being Civil Application No. 6571 of 1987, for stay of the order passed by Mehta, J., in Civil Application No. 6208 of 1987 (in A.O. No, 1007 of 1987). The earlier Division Bench, by a detailed speaking order, granted rule on 17th of December 1987. The Division Bench also granted stay in terms of prayer (a) of the said Civil Application. The effective direction was that the Court Receiver should take possession of the suit premises and appoint the plaintiff as his agent thereof on such terms and conditions as to security as the Court Receiver may consider just and proper. Rule on the Civil application was made returnable on 7th January, 1988. 9. In the meantime, we have been told, defendants Nos. 4 and 5 preferred a Special Leave Petition bearing No. 15857 of 1987 to the Supreme Court. Rule on the Civil application was made returnable on 7th January, 1988. 9. In the meantime, we have been told, defendants Nos. 4 and 5 preferred a Special Leave Petition bearing No. 15857 of 1987 to the Supreme Court. It has been mentioned to us that the said Special Leave Petition was disposed of on 4th of January, 1988 with the order that status quo as on the date of the order of the Supreme Court shall be maintained till the disposal of the civil application. Liberty was given to defendants Nos. 4 and 5 to approach the Supreme Court, if necessary, from the order passed by the High Court in the civil application. 10. When the civil application came up for final hearing, the question of the maintainability of the appeal itself was naturally raised by Mr. Abhyankar, the learned Advocate appearing for the contesting respondents. Mr. Abhyankar contended, and not without justification, that if it is demonstrable that this Letters Patent Appeal is competent then the civil application also should be dismissed. Since the question of the maintainability of this Letters Patent appeal was left open while admitting the appeal and since this question was of sufficient relevance for the disposal of the civil application, we, with the consent of the parties, fixed this appeal for final hearing. 11. Mr. Gumaste, the learned Advocate appearing for the appellant and Mr. Abhyankar appears for the contesting respondents. The order impugned in this appeal is an order passed in a civil application which itself had been preferred by the appellant in an Appeal from Order which lies to the High Court from the orders of the City Civil Court under Order 43 Rule 1 read with section 140 of the Code of Civil Procedure, hereinafter referred to as "the Code". Mr. Abhyankar contended that in view of the judgment of the Supreme Court in (Shah Babulal Khimji v. Jayaben)1, A.I.R. 1981 Supreme Court 1786 no appeal lies from any order passed in exercise of the jurisdiction of an Appellate Court under section 104 of the Code. Prior to the aforesaid judgment of the Supreme Court undoubtedly, at least in this Court, Letters Patent appeals used to be filed against the orders passed disposing of the Appeals from Orders under section 104 of the Code. Prior to the aforesaid judgment of the Supreme Court undoubtedly, at least in this Court, Letters Patent appeals used to be filed against the orders passed disposing of the Appeals from Orders under section 104 of the Code. This was because it was thought, and it has been so held in some judgments of this Court, that Clause 15 of the Letters Patent was independent of section 104 of the Code and despite the ban contained in section 104(2) of the Code an appeal could lie under Clauses 15 of the Letters Patent. That position in no longer valid after the decision of the Supreme Court in Shah Babulal's case. It has been held that sub-section (2) of section 104 of the Code would restrict the scope or the number of appeals permissible under Clauses 15 of the Letters Patent. If this is so and if it is shown that the order passed by Mehta, J., is an order in an appeal under section 104 of the Code then by virtue of the language contained in section 104(2) of the Code, this Letters Patent Appeal would naturally be barred. This is the sum and substance of Mr. Abhyankar's argument. 12. In support of this contention Mr. Abhyankar has invited our attention to a judgment of the Kerala High Court in (Chellappan v. K.P. Varughese)2, A.I.R. 1964 Kerala 23, wherein a learned Single Judge has held that an appeal to the High Court against an interlocutory order passed by a District Judge in an appeal under section 104 read with Order 43 of the Code was incompetent and therefore liable to be dismissed in limine. Mr. Abhyankar also relied upon a judgement of the Allahabad High Court in (Umatur Robab v. Mahadeo Prasad)3, A.I.R. 1941 Allahabad 338, in support of his submission. In (C. Kalahasti P.C.M. Chetti)4, A.I.R. 1975 Madras 3, Natrajan, J., as he then was, sitting as a Single Judge, held that an order passed by an Appellate Court under Order 39, Rule 1 of the Code cannot be construed as an order passed by a Court in exercise of its original jurisdiction. Reference was made to the relevant provisions of the Code and it was noticed that a Court must pass orders either exercise of its original jurisdiction or in exercise of its appellate jurisdiction. Reference was made to the relevant provisions of the Code and it was noticed that a Court must pass orders either exercise of its original jurisdiction or in exercise of its appellate jurisdiction. If an appeal from an order is preferred to an Appellate Court and during the course of the proceedings of that appeal from order any order is passed by the Appellate Court, the latter order will necessarily be an order passed in appeal because it is an order passed in exercise of the appellate jurisdiction. If this is so, then, by virtue of the provision contained in sub-section (2) of section 104 of the Code, further appeal from that the order will be barred. 13. Mr. Gumaste concedes the position that if an appeal which he insists is maintainable under Clause 15 of the Letters Patent will not be maintainable if there is a specific bar against the same in any of the provisions of the Code or any other law. That this is the position is now clear from the judgment of the Supreme Court in Shah Babulal's case. Mr. Gumaste insists that under the fist part of Clause 15 of the Letters Patent an appeal from a judgment given by a learned Single Judge of the High Court is maintainable. He has contended that the order passed by Mehta J., in the instant case amounts to a judgement and from the clear language of Clause 15 of the Letters Patent an appeal against the said judgment is maintainable, though it is passed by Mehta, J., in exercise of his appellate jurisdiction. Mehta, J., has passed this order in an appeal from an order of a trial Court. He wanted to persuade us to hold that the order of Mehta, J., amounts to a judgment. We have, however, not thought it necessary to go into that question in great details because we are of the opinion that Mr. Gumaste must necessarily fail on the maintainability of this Letters Patent appeal. Mr. Gumaste is perfectly justified in saying, and we agree with him in that regard, that if a right of appeal is given by one provision of law, it cannot be taken away except by an explicit provision of a law or by necessary implication. Gumaste must necessarily fail on the maintainability of this Letters Patent appeal. Mr. Gumaste is perfectly justified in saying, and we agree with him in that regard, that if a right of appeal is given by one provision of law, it cannot be taken away except by an explicit provision of a law or by necessary implication. With the object of showing that the right of appeal which is available to him under the first part of Clause 15 of the Letters Patent has not been taken away by any other provision in the Code, Mr. Gumaste has taken us through several provisions of the Code. It is not necessary for us to refer to the same because if we find that the order passed by Mehta, J., is an order passed in an appeal preferred under section 104 of the Code, the bar contained in sub-section (2) of that section will immediately come into operation. It is the contention of Mr. Gumaste that the order passed by Mehta, J., is not an order passed in an appeal under section 104 of the Code, but it is passed independent of the appeal. According to Mr. Gumaste, the order contemplated in sub-section (2) of section 104 of the Code is an order finally disposing of an appeal and not an order which is passed during the course of the hearing of the appeal or before the disposal thereof. It is definitely not an order passed in an application for interim reliefs. 14. It is not possible for us to accept this interpretation of sub-section (2) of section 104 of the Code sought to be put by Mr. Gumaste. The words of the said provision are clear. They are to the effect "any order passed in appeal under this section". Sub-section (2) of section 104 does not say "an order disposing of an appeal passed under this section". We do not see how we can re-write sub-section (2) of section 104 of the Code in the manner suggested by Mr. Gumaste. If anything, the language of the other sections in the Code also suggests that when the legislature used the words "any order passed in appeal under this section ". It did not restrict the meaning of the word "order" to " an order finally disposing of an appeal". See, for example, the language of section 105 of the Code. Gumaste. If anything, the language of the other sections in the Code also suggests that when the legislature used the words "any order passed in appeal under this section ". It did not restrict the meaning of the word "order" to " an order finally disposing of an appeal". See, for example, the language of section 105 of the Code. It deals with orders made by a Court in exercise of its original or appellate jurisdictions and mentions that any such order is not the subject-matter of an appeal except as otherwise provided, but the validity of the order can be challenged in any appeal preferred from the decree finally passed. If the legislature wanted to restrict the ban imposed by section 104 (2) of the Code to only an order finally disposing of an appeal, it would have, naturally, used an appropriate language and not a term which is much wider than what is being suggested by Mr. Gumaste. 15. We are proceeding on the assumption, which assumption is fully justified, that an Appellate Court in exercise of its jurisdiction under section 104 of the Code has jurisdiction to pass orders of the nature contemplated by Order 43, Rule 1 of the Code. The Appellate Court thus will be having power to pass orders under Order 39 or Order 40 of the Code. Nevertheless, such orders will be orders passed in exercise of its appellate jurisdiction. The appellate jurisdiction which is exercised in the instant case is the one under section 104 of the Code. It is necessarily an order passed in an appeal, though on an application for interim relief. We do not see how it is possible to say that the order passed by Mehta, J., in the instant case is not an order in an appeal under section 104 of the Code. It this is so, then the bar contained in sub-section (2) of section 104 of the Code will necessarily operate, as has been pointed out by the Supreme Court in Shah Babulal's case. We are, therefore, satisfied that this Letters Patent appeal is not maintainable. Naturally, no relief can be given to the appellant, who is the petitioner in Civil Application No. 6571 of 1987. 16. Rule in Civil Application No. 6571 of 1987 is discharged with no order as to costs. We are, therefore, satisfied that this Letters Patent appeal is not maintainable. Naturally, no relief can be given to the appellant, who is the petitioner in Civil Application No. 6571 of 1987. 16. Rule in Civil Application No. 6571 of 1987 is discharged with no order as to costs. Letters Patent Appeal No. 129 of 1987 is dismissed as not being maintainable. 17. After hearing Mr. Gumaste and Mr. Abhyankar, we are inclined to continue the status quo as ordered by the Supreme Court, for some further time. Accordingly it is directed that status quo as ordered by Supreme Court in Special Leave Petition No. 15857 of 1987 shall continue till 30th March, 1988. Appeal dismissed. -----