JUDGMENT : plaintiff in O-S-No-306/2007 in Court of learned Senior Civil Judge at Indi (henceforth for brevity referred to as 'trial Court') has filed this appeal challenging order dated 11-06-2015 passed by Trial Court wherein his interlocutory application bearing I-A-No-XVIII filed under Order XXXIX Rule 2-A of Code of Civil Procedure 1908 (henceforth for brevity referred to as 'CPC') was rejected- 2- present appellant has filed a suit in O-S-No-306/2007 in trial Court against present respondents and others for relief of partition and separate possession- suit properties inter alia was also included land properties in different survey numbers which according to plaintiff have been formed into several plots and were sold to different persons by defendant No-1- During pendency of said original suit present appellant as plaintiff on 12-01-2012 filed I-A-No-XVI for relief injunction restraining defendants from undertaking any construction and development works in suit schedule properties- said I-A-No-XVI came to be allowed by order of trial Court dated 02-08-2012- Defendant No-1 filed an application on 19-03-2013 in trial Court under Order XXXIX Rule 4 of CPC for recalling order passed on I-A-No-XVI- trial Court after hearing both side allowed said application i-e- I-A-No-XVII on 10-06-2015 and recalled order passed on I-A-No-XVI- In meantime on 05-04-2014 appellant/plaintiff filed application i-e- I-A-No-XVIII under Order XXXIX Rule 2-A r/w Section 151 of CPC in trial Court requesting to detain defendant Nos-4 16 and 47 in a civil prison and to attach their properties and to sell them in public auction for payment of compensation for disobedience of injunction order passed on I-A-No-XVI on 02-08-2012- respondents filed their objections to said I-A-No-XVIII- trial Court after hearing both side vide its order dated 11-06-2015 rejected said I-A-No-XVIII filed by plaintiff under Order XXXIX Rule 2-A of CPC- 3- Aggrieved by same plaintiff in trial Court has preferred present appeal under Order XLIII rule 1(r) of CPC- 4- respondents are being represented by their counsel- 5- Heard arguments from both side- points that arise for my consideration are: i- Whether an appeal would lie under Order XLIII Rule 1(r) of CPC against an order passed rejecting interlocutory application filed under Order XXXIX Rule 2-A of CPC? ii- Whether applicant in I-A-No-XVIII in trial Court had established that defendant Nos-4 16 and 47 therein had disobeyed order of injunction granted in favour of plaintiff on I-A-No-XVI by trial Court vide its order dated 02-08-2012? ii- Whether applicant in I-A-No-XVIII in trial Court had established that defendant Nos-4 16 and 47 therein had disobeyed order of injunction granted in favour of plaintiff on I-A-No-XVI by trial Court vide its order dated 02-08-2012? iii- Whether impugned order warrants any interference at hands of this Court? ii- Whether applicant in I-A-No-XVIII in trial Court had established that defendant Nos-4 16 and 47 therein had disobeyed order of injunction granted in favour of plaintiff on I-A-No-XVI by trial Court vide its order dated 02-08-2012? iii- Whether impugned order warrants any interference at hands of this Court? 6- Before learned counsel for appellant could commence his arguments on appeal learned counsel for respondents raised preliminary objection regarding maintainability of appeal under Order XLIII Rule 1(r) of CPC against impugned order- This made this Court to hear both side on maintainability aspect in beginning- As such point No-1 has arisen for consideration- 7- learned counsel for respondents in his arguments on maintainability submitted that by virtue of judgment of Gauhati High Court in case of Banamali Dey vs- Satyendra Chanda and Others reported in 1990 (2) Current Civil Cases 295 Miscellaneous First Appeal under Order XLIII Rule 1(r) of CPC is not maintainable against an order of rejection of interlocutory application filed under Order XXXIX Rule 2-A of CPC- learned counsel for appellant in his arguments submitted that this Court in Devikarani vs- Venkatesha Sastry reported in ILR 1994 KAR 1444 has held that against an order passed on interlocutory application filed under Order XXXIX Rule 2-A of CPC appeal under Order XLIII Rule 1(r) of CPC would lie- 8- Order XLIII Rule 1(r) of CPC reads as below: "1- Appeals from orders--An appeal shall lie from following orders under provisions of section 104 namely:- (a) to (q) xxx (r)- an order under rule 1 rule 2 [rule 2-A] rule 4 or rule 10 of Order XXXIX-" 9- In Banamali Dey's case (supra) Gauhati High Court at paragraph 8 of its judgment has observed as below: "8- From a plain reading of Rule 2A and nature of orders that a Court may pass thereunder it is evident that an order passed by Court holding that there was no disobedience or breach of injunction granted by it is not an order within meaning of Rule 2A- question of passing an order under Rule 2A will arise only in a case where on consideration of information received by it Court is satisfied that there was disobedience of injunction granted by it- It may be noted herein that Rule 2A(1) deals with punishment that can be awarded by Court to a person guilty of disobedience or breach of injunction- initiation of a proceeding for such an action however depends on satisfaction of Court in regard to factum of disobedience or breach- alleged disobedience or breach pertains to an order of Court and it is for Court to determine or decide whether any such disobedience or breach did in fact take place- If it is not so satisfied it may refuse to proceed further and in that event question of passing an order under Rule 2A would not arise- If on other hand Court finds that there had been disobedience or breach of injunction it may pass any of orders of nature specified in said rule- Such order would be an order under Rule 2A and would be appealable order under Order 43 Rule 1(r)- But no appeal has been provided against an order passed by Court refusing to initiate a proceeding for action under Rule 2A on ground that in its opinion there was no disobedience or breach of injunction order passed by it- …-" 10- learned counsel for appellant relied upon Devikarani's case (supra) wherein a Co-ordinate Bench of this Court in paragraph-25 of its judgment was pleased to observe that orders rejecting application filed under Order XXXIX Rule 2-A of CPC are appealable under Order XLIII Rule 1(r) of CPC and such an appeal cannot be treated as a Regular First Appeal but only as a Miscellaneous First Appeal- It is relying upon judgment in Devikarani's case (supra) learned counsel for appellant submitted that a conjoint reading of Section 104(1)(i) of CPC r/w Order XLIII Rule 1(r) of CPC makes it clear that for rejection of interlocutory application filed under Order XXXIX Rule 2-A of CPC also it is a Miscellaneous First Appeal under Order XLIII Rule 1(r) of CPC alone lies- 11- A careful reading of Order XLIII Rule 1(r) of CPC would go to show that section does not make any distinction between an order rejecting application filed under Rule 2-A of Order XXXIX of CPC and that an order allowing such application by prescribing punishment for alleged disobedience or breach of injunction- Had it been intention of Legislator to make such bifurcation or distinction and restrict scope of filing appeal under Order XLIII Rule 1(r) of CPC only as against orders made allowing application filed under Order XXXIX Rule 2-A of CPC then Legislator would have specifically mentioned same in section and drafted section limiting its scope and enabling filing of appeal only in case of allowing application- It is also for reason that in very same Order XLIII Rule 1 of CPC Legislator has made such distinction and confined scope of appeal only for certain act- To illustrate under Order XLIII Rule 1(c) of CPC provision to prefer an appeal is made only in case where an application is rejected which is filed under Order IX Rule 9 of CPC- Similarly provision of filing an appeal is provided under Order XLIII Rule 1(k) of CPC only where an order passed under Order XXII Rule 9 of CPC would be resulting in refusing to set aside abatement or dismissal of a suit- Thus intention of Legislator is not that where Court holds that there is disobedience of its order of injunction and proceeds to prescribe punishment it is only then aggrieved party can file an appeal under Order XLIII Rule 1(r) of CPC- 12- contention of respondents that question of passing an order under Rule 2-A of Order XXXIX of CPC will arise only in a case where on consideration of information received by it Court satisfies that there was disobedience of injunction granted by it is also not acceptable for reason that though Rule 2-A of Order XXXIX of CPC prescribes punishment for consequence of disobedience or breach of injunction granted or other order made under Rule 1 or Rule 2 of same Order but said Order nowhere mentions as to what amounts to a disobedience of any injunction granted or other order made under Rule 1 or Rule 2 of Order XXXIX of CPC- Thus while considering application filed under Order XXXIX Rule 2-A of CPC Court may have to raise two points: Firstly as to whether any disobedience of any injunction granted or other order made by it has been established- second point would be as to whether respondents in application would be liable to be punished- It is only if first point is answered in affirmative consideration of second point arises- As such before prescribing any punishment for alleged violator of order of Court passed under Rule 1 and Rule 2 of Order XXXIX of CPC Court has to first see about existence of alleged disobedience or breach of order/injunction- As such application filed under Order XXXIX Rule 2-A of CPC invariably requires Court dealing with application to make its observation on establishment of alleged act of disobedience of any injunction granted or other order made by it- Thus even if finding of Court on said point would be in negative still it would be an order passed by Court under Rule 2-A of Order XXXIX of CPC- 13- Section 104 of CPC speaks about orders from which appeal lies- Clause (i) of sub-Section (1) of said Section reads as below: "104(1)- Orders from which appeal lies-- (1) An appeal shall lie from following orders and save as otherwise expressly provided in body of this Code or by any law for time being in force from no other orders-- (a) to (h) xxx (i)- any order made under rules from which an appeal is expressly allowed by rules- [Provided that no appeal shall lie against any order specified in clause (ff) save on ground that no order or an order for payment of a less amount ought to have been made-]" 14- A conjoint reading of Section 104 (1)(i) of CPC with Order XLIII Rule 1(r) of CPC would go to show that an order of rejection of application which application is made under Order XXXIX Rule 2-A of CPC would also be an order made under Order XXXIX Rule 2-A of CPC- As such appeal would lie against said order under Order XLIII Rule 1(r) of CPC- Therefore argument of learned counsel for respondents that present appeal is not maintainable under Order XLIII Rule 1(r) of CPC is not acceptable- 15- On merits of case it is contention of appellant/plaintiff that defendant Nos-4 16 and 47 in trial Court have disobeyed order of injunction dated 02-08-2012 passed on I-A-No-XVI by trial Court against them- 16- learned counsel for appellant while reiterating same submitted that there is also an order of status-quo passed subsequently in matter which also has not been obeyed by defendants in trial Court- 17- learned counsel for respondents in his arguments submitted that even though I-A-No-XVI filed by plaintiff was allowed by trial Court however at instance of defendant No-1 who filed I-A-No-XVII under Order XXXIX Rule 4 of CPC order passed on I-A-No-XVI came to be recalled by allowing I-A-No-XVII by trial Court vide its order dated 10-06-2015- As such when very order which is alleged to be disobeyed itself is recalled question of disobedience of said order does not arise- 18- A perusal of impugned order and materials placed before this Court would go to show that order passed on I-A-No-XVI dated 02-08-2012 which is now alleged to have been disobeyed by defendants has been recalled by very same trial Court by allowing I-A-No-XVII filed by defendant No-1 under Order XXXIX Rule 4 of CPC vide its order dated 10-06-2015- Admittedly while passing said order dated 10-06-2015 recalling its earlier order passed on I-A-No-XVI trial Court has not mentioned any alleged disobedience or breach of injunction by defendants from date 02-08-2012 till allowing I-A-No-XVII on 10-06-2015 which would attract an action under Order XXXIX Rule 2-A of CPC- Thus act of trial Court as well as intention of trial Court which is further reflected in impugned order would clearly go to show that recalling of order passed on I-A-No-XVI dated 02-08-2012 by allowing I-A-No-XVII is in fact making said order passed on I-A-No-XVI a non est- Thus earlier order dated 02-08-2012 is as good as it was not in existence- Therefore trial Court observing that in such a circumstance considering alleged violation of said order does not survive for its consideration proceeded to reject I-A-No-XVIII filed under Order XXXIX Rule 2-A of CPC- I do not find any infirmity illegality or error in said order warranting any interference at hands of this Court- 19- Accordingly I proceed to pass following order: ORDER appeal stands dismissed as devoid of merit- Registry to transmit a copy of this judgment to concerned trial Court without delay-