ORDER Two applications one under order 39 rule 4 read with section 151 of the Code of Civil Procedure and another under section 151 of the same Code have come up for disposal by this common order. Both the applications have been filed by and on behalf of the respondents in the present appeal, who were defendants in the suit in the court below. 2. It appears that the present appellants filed Title Partition Suit No. 107 of 1996 in the court of the Subordinate Judge of Patra City for partitioning the land of plot no. 198 of Khata no. 200 measuring 4 kathas and 4 dhurs situated at mohalla Mohammadpur Shahganj in Patna town with structures standing thereon claiming 1/2 share therein. According to the plaintiffs, the properties in question had been acquired by one Dineshwar Prasad Verma, the husband of plaintiff no. 1 and father of plaintiffs no. 2 to 5 on the basis of a registered sale deed dated 30-3-1950 in the name of the wife of his elder brother Sureshwar Prasad Verma. Both the brothers were joint owners of the land and constructed building thereon and were residing therein jointly. Subsequently, there was a division in the bolding, one in the name of plaintiff no. 1 and another in the name of the sons of Sureshwar Prasad Verma, as the said Sureshwar Prasad Verma and his widow had died long back. The defendants are the sons and daughters of the said Sureshwar Prasad Verma. Pursuant to summons issued to the defendants for hearing and settlement of issues they appeared in the court below and tiled their written statement taking various pleas against the claim of the plaintiffs. One of the pleas was respecting maintainability of the suit op the ground that the claim of the plaintiffs having been based on benami transaction the suit was barred by the provision of section 4 of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as 'the Act') They also made a prayer for hearing the issues regarding maintainability of the suit as preliminary issues. Consequently, the 3rd Subordinate Judge of Patna City, before whom the suit was pending for trial heard the parties on the preliminary issue respecting maintainability of the suit and by his order dated 28-4-1997 dismissed the suit on the ground that it was barred by -the provision of section 4 of the Act. 3. Consequently, the 3rd Subordinate Judge of Patna City, before whom the suit was pending for trial heard the parties on the preliminary issue respecting maintainability of the suit and by his order dated 28-4-1997 dismissed the suit on the ground that it was barred by -the provision of section 4 of the Act. 3. After filing the appeal the appellants filed an application under Order 39 rule 1 of the Code of Civil Procedure (in short ‘the Code’) for issuing temporary injunction pending disposal of the appeal on the ground that the defendants were intending to demolish the structure standing on the suit land and for that purpose they had started collecting building materials like stonechips etc. Notice of the application was directed to be sent to the respondents-defendants who received the same and entered appearance through vakalatnama on 1-7-1997 but failed to file any show cause. Subsequently, when the application for temporary injunction came up for bearing on 16.7.1997, nobody appared on behalf of the respondents. Therefore, by order of the even date the respondents were restrained from demolishing the house standing over the suit plot during the pendency of the appeal. To set aside the said order the respondents have filed all application under rule 4 of Order 39 of the Code. That application is at flag 'C' They have also filed yet another application under section 151 of the Code, which is at flag 'D' to dismiss the appeal in limine on the ground that it was not maintainable in view of the impugned order having been passed under Order 4 rule 2 of the Code. 4. The learned counsel for the respondents has submitted that even though the respondents appeared with power in his favour file on 1.7.1997, but they could not appear in the Court when the case was called out because of state of deluge in the town. When he came to the Court on next day he came to learn that an exparte order of injunction had been passed. His contention is that the said order is fit to be set aside on the ground that the appeal itself is not maintainable. According to him, since the order purported to have been made in accordance with the provision of Order 14 rule 2 of the Code, no appeal lies. According to him, such an order is revisable under section 115 of the Code. According to him, since the order purported to have been made in accordance with the provision of Order 14 rule 2 of the Code, no appeal lies. According to him, such an order is revisable under section 115 of the Code. In support of his contention he has placed reliance on two decision, one of this Court and another of Andhra Pradesh High Court in the case of M/s Sawaria Brothers & anr. vs. M/s Gupta & Co., 1984 BLJ 389; and State of Andhra Pradesh & anr. vs. Bandalam Srinivasulu & ors., A.I.R. 1982 A. P. 291. On the other hand, the learned counsel for the appellant relying on a Bench decision of this Court reported in 1983 B.B.C.J. 657 (pam Barai Bhagat & ors. vs. Munni Lal Singh & ors) has contended. that since the order under appeal amount to a decree, appeal; not revision, lies. 5. Sub-rule (1) of Rule 2 of Order 14 of the Code lays down that notwithstanding that a case may be disposed of on a preliminary issue the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. Sub-rule (2) provides that where issues both of law and of fact arise in the same suit and the Court ii of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the Jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Therefore, it is manifest that if issue of law respecting jurisdiction of the Court, or a bar to the suit created by any law for the time being in force, is raised by the defendants in a suit, such issue may be decided by the trial court as preliminary issue leaving other issues like issues of fact or mixed issues of law and fact. This is actually what happened in the present case. The plaintiffs had based their claim on a transaction entered into in the name of the mother of the respondents defendants. This is actually what happened in the present case. The plaintiffs had based their claim on a transaction entered into in the name of the mother of the respondents defendants. The latter took a plea that the claim was barred by the provisions of the Act. Section 4 (1) of the Act provides that no suit, claim or action to enforce any right in respect of any property, held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claming to be the real owner of such property. On hearing the parties to the suit, the learned Subordinate Judge has come to the conclusion that the mischief of sub section (1) of section 4 of the Act is attracted to the present suit. Hence, he has dismissed the suit without further investigating the claims of the parties to the suit. Against that order the present appeal bas been preferred. 6. The learned counsel for the respondents has contended that the order is not appealable and in support he has placed reliance on two decisions reported in 1984 BLJ 389 and AIR 1282 A.P. 291. On going through these decisions I find that none of them come to the help of the respondents. In the case of M/s Sawada Brothers and anr. (supra) the defendants had filed an application under Order 14 rule 2 of the Code to the effect that the suit was barred by sections 5 and 7 of the Banking regulation act as well as under section 5 of the Bihar Money Lender’s Act. The trial court rejected the petition on the ground that the issue was of mixed question of law and fact. In the circumstance, when the defendants came to the Court by filing an application under section 115 of the Code, this Court set aside the order of the trial court declining to hear the issue as preliminary issue and directed the trial court to decide the question of law on the basis of the plaint and written statement of the parties before deciding order issues. In the case of State of Andhra Pradesh and anr. vs. Bandalam Srinivasulu and ors. In the case of State of Andhra Pradesh and anr. vs. Bandalam Srinivasulu and ors. (supra) also the trial court had declined to frame preliminary issue to be decided under Order 14 rule 2 of the Code and a Bench of Andhra Pradesh High Court in exercise of jurisdiction under section 115 of the Code set aside the order and directed the trial court to frame preliminary issue and initial decision of the same. 7. The law is well-settled that if there is a prayer by a party to hear and dispose of the case on preliminary issue regarding jurisdiction of the Court and specific bar by any law and the Court declines to do so such an order is not appealable. The facts of the present case are however, different. After hearing the parties on preliminary issue respecting bar to the suit by the Act, the learned Subordinate Judge dismissed the suit holding that the suit was not maintainable. Such an order is a decree within the meaning of section 2(2) of the Code. Section 2(2) of the Code defines ‘decree’ to mean the formal expression of an adjudication which, so far at regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final. It shall be deemed to include the rejection of a plaint and the determination of any question within the meaning of section 144, but shall not include any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default. The same view has been taken by a bench of this Court in the case of Ram Barai bhagat vs. Munni Lal Singh and ors. (supra). In the present case on the plea of bar by the Act having been taken by respondents-defendants, the trial court dismissed the suit on the ground that the same was not maintainable in view of the bar imposed by section 4(1) of the Act. By doing so, the trial court has conclusively determined the rights of the parties and such adjudication is certainly a decree within the meaning of section 2(2) of the Code. That appeal lies against a decree is not a disputed point at the bar. By doing so, the trial court has conclusively determined the rights of the parties and such adjudication is certainly a decree within the meaning of section 2(2) of the Code. That appeal lies against a decree is not a disputed point at the bar. Therefore, I find that the present appeal is perfectly maintainable and that the order dated 28.4.1997 made by the Subordinate Judge in Title Partition Suit No. 107 of 1996 dismissing the suit on preliminary issue is not revisable. 8. Having decided the question of maintainability of the suit in favour of the appellants there is little ground for the respondents to succeed in their application at flag 'C’ which is for discharging or setting aside the ex parte order of injunction passed in this appeal on 16.7.1997. Rule 4 of Order 39 of the Code lays down that any order for an injunction may be discharged, or varied, or set aside by the Court, on application made there to by any party dissatisfied with such order. Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or mislending statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstance, or unless the Court is satisfied that the order has caused undue hardship to that party. In the present case the respondents were served with notice for temporary injunctions in fact, they appeared on 1.7.1997 but failed to file any show cause against the prayer for temporary injunction. On 16.7.1997 when the application for temporary injunction filed by the appellants came up for hearing, nobody was present. Therefore, the order sought to be set aside was made directing, the respondents not to demolish the budding in question till the disposal of the appeal. On 16.7.1997 when the application for temporary injunction filed by the appellants came up for hearing, nobody was present. Therefore, the order sought to be set aside was made directing, the respondents not to demolish the budding in question till the disposal of the appeal. So it cannot be said that the said order was passed without giving to the respondents any opportunity of being heard. The reason for their non-appearance on 16.7.1997 is a consideration alien to the first proviso to rule 4 of Order 39 of the Code. Moreover, the appellants do not appear to have made any false or misleading statement in relation to meterial particulars for obtaining the injunction. The learned counsel for the respondents submitted that as the appellants filed an appeal suppressing the question of law that no appeal lies, (a plea not found tenable), they are guilty of knowingly making a false or misleading statement for obtaining order of injunction. I have already held that appeal lies against the order made by the learned Subordinate Judge, and not revision. 9. The second proviso to rule 4 or order 39 specifically prohibits vacation, variation or setting aside of an order of temporary injunction made after giving the opposite parties an opportunity of being heard unless the Court finds that such vacation. Variation or setting aside has been necessitated by a change in the circumstances or the order is likely to cause undue hardship to that party. No such case is made out by the respondent. Admitted case of the parties is that both of them are residing in the same building, with only difference that while the appellants assert that they ate living on the suit land in their own right, the respondents alleges that the occupation of the former is permissive. No hardship to the Respondents has been alleged. There is no change of circumstance either for warranting vacation or setting aside or order dated 16.07.1997. Only ground on which the respondents have sought vacation/setting aside of the said order is that no appeal lies against the order of the court below. They having failed on that plea, their application at flag 'C' must also fail and the lame is hereby dismissed. 10. Before parting it is necessary to point out that even though the appeal was filed on 15.5.1997 it has not been admitted simply because no stampereport has been made. They having failed on that plea, their application at flag 'C' must also fail and the lame is hereby dismissed. 10. Before parting it is necessary to point out that even though the appeal was filed on 15.5.1997 it has not been admitted simply because no stampereport has been made. For not making the stamp report it is stated that the appellants have failed to file certified copy of the decree under appeal. No direction appears to have been given to the appellants for filing the certified copy. Therefore, the appellants are directed to file certified copy of the decree under appeal within four weeks from today.