JUDGMENT
G.D. Patil, J.
1. The original plaintiffs have challenged the order dated 5-5-1990, passed below Ex. 15 in C.A No. 367 of 1988 by the learned Additional District Judge, Nagpur.
2. Ex. 15 was the application for dismissal of the appeal filed by the original defendants-non-applicants, under Order 43, Rule 1(r) C.P.C. wherein they had challenged the order passed by the trial Court under Order 39, Rule 2-A, C.P.C. on 2-8-1988, whereby the defendants were directed to be detained in the civil prison for a period of one month. The applicants-plaintiffs had contended in this application that no appeal lies under Order 43, Rule 1(r) C.P.C. as against the order passed under Order 39, Rule 2-A, C.P.C. and as such the appeal be dismissed for want of jurisdiction.
3. The learned Additional District Judge, Nagpur, vide his order under challenge has, however, held that the appeal was maintainable. While coming to this conclusion, he has relied upon the provisions of the C.P.C. as amended in the year 1976.
4. No doubt, Civil Procedure Code, 1908, came to be amended by Central Act 104 of 1976 and Clause (r) of Rule 1 of Order 43 came to be amended by inserting ‘Rule 2-A’ therein, whereby the order passed under Rule 2-A of Order 39 became appealable. Thereafter, in so far as the State of Maharashtra is concerned, however, Clause (r) came to be substituted by Bombay High Court Notification dated 5-9-1983 as under :
“An order under Rule 1, Rule 2, Rule 4, Rule 10 or Rule 11 of Order XXXIX”.
It is apparent that in this substituted Clause (r), ‘Rule 2-A of Order 39’ is not mentioned, though it was so inserted in Clause “r” by Amendment Act 104/76 making thereby the order passed under Rule 2-A of Order 39 appealable. The above referred provisions of Clause (r) of Rule 1 of Order 43 which is applicable to the State of Maharashtra, do not thus provide appeal against the decision under Rule 2-A of Order 39 and the appeal preferred in the instant matter in the year 1986, being Misc. Civil Appeal No. 367 of 1986 was, therefore, apparently not tenable. The contrary conclusion arrived at by the learned Additional District Judge, is not correct. The impugned order is, therefore, set aside and the appeal filed by the non-applicant is held to be not maintainable.
5. Shri Vaidhya, learned Counsel for the non-applicants, however, contends that the non-applicants were bona fide prosecuting the matter in appeal before the learned Additional District Judge, who also was of the view that the appeal was maintainable. In this appeal, the stay of the order under challenge passed by the trial Court was granted. Shri Vaidhya, therefore, contends that even if the appeal is not tenable he can certainly challenge the trial Court’s order by filing the revision before this Court explaining the delay involved in filing of the same. Shri Vaidhya contends that the non-applicants are intending to do so and prayed that in order to enable him to do so and to obtain the suitable orders, the continuance of the present state of affairs till then would be in the interest of justice. There is much substance in his say. In the circumstances, the impugned order is set aside. The order dated 2-8-1988 passed by the trial Court on the application under Order 39, Rule 2-A, C.P.C. would stand stayed till 20th of this month. The instant revision application thus, stands disposed of in the above terms. There will be, however, no order as to costs.