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2025 DIGILAW 1209 (ALL)

Chandra Pal Singh v. Dhoom Singh

2025-10-06

YOGENDRA KUMAR SRIVASTAVA

body2025
JUDGMENT : YOGENDRA KUMAR SRIVASTAVA, J. 1. Heard Sri Alok Saxena, along with Ms. Aanya Verma, learned counsel for the appellants. 2. The instant appeal filed by the appellants-plaintiffs under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (C.P.C.), is directed against an order dated 15.7.2025 passed by the District Judge, Hapur, in Misc. Civil Appeal No. 03 of 2025 [Dhoom Singh and Another Vs. Chandra Pal Singh and Others], whereby the appeal has been allowed and the earlier order dated 24.12.2024 passed by the Civil Judge (Junior Division)-I, Hapur allowing the Application 6C2, filed in Original Suit No. 125 of 2024, has been set aside. 3. Stamp Reporter has submitted a report stating that the instant appeal appears to be not maintainable as it has been filed against an order passed in a miscellaneous appeal. 4. Counsel appearing for the appellants has sought to contend that the miscellaneous appeal filed by the defendants having been allowed and the interim injunction order granted upon Application 6C2 filed by the appellants/plaintiffs in the original suit, having been set aside, the plaintiffs (appellants herein) would be entitled to maintain the present appeal against the order passed in the miscellaneous appeal. 5. For consideration of the maintainability of the present appeal, the provisions of Section 104 of the C.P.C. would be relevant, and the same are being reproduced as under: “ 104. 5. For consideration of the maintainability of the present appeal, the provisions of Section 104 of the C.P.C. would be relevant, and the same are being reproduced as under: “ 104. Orders from which appeal lies.— (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:— (a) [* * *] (b) [* * *] (c) [* * *] (d) [* * *] (e) [* * *] (f) [* * *] (ff) an order under Section 35-A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (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 the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section.” 6. Section 104 (1) C.P.C. provides that an appeal shall lie from the orders specified in the said sub-section, and it further provides that save as otherwise expressly provided in the body of the Code, or by any law for the time being in force, no appeal shall lie against any other order. 7. Section 104 (1)(i) provides for filing of an appeal against any order made under rules from which an appeal is expressly allowed by rules. 8. The expression 'order' has been defined under Section 2(14) as meaning the formal expression of any decision of the Civil Court which is not a decree. 9. Order XLIII Rule 1 specifies the orders against which an appeal shall lie under the provisions of Section 104 . An order granting or refusing a temporary injunction under Order XXXIX Rules 1 and 2 is an appealable order under Order XLIII Rule 1(r). 10. 9. Order XLIII Rule 1 specifies the orders against which an appeal shall lie under the provisions of Section 104 . An order granting or refusing a temporary injunction under Order XXXIX Rules 1 and 2 is an appealable order under Order XLIII Rule 1(r). 10. Any party aggrieved by an order of the trial Court upon an application for temporary injunction, would have the remedy of filing a 'miscellaneous civil appeal' or an 'appeal from order' under Section 104 read with Order XLIII Rule 1(r). 11. Section 104 (2) specifically states that no appeal shall lie from any order passed in appeal under the said section. Section 105(1) reiterates by laying down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate jurisdiction. 12. A conjoint reading of the aforesaid provisions make it abundantly clear that an appeal would lie if the order passed has been made expressly appealable under the provisions contained in Section 104 (1) read with Order XLIII Rule 1, and that no further appeal would be maintainable against the decision in such appeal. 13. The embargo under Section 104 (2) is absolute and contains a clear interdict against any further appeal from an order passed in an appeal under Section 104 . 14. The remedy of an appeal provided under Section 104 (1) is only in respect of the orders specified therein and those as referred to under Order XLIII Rule 1. The orders which have been made appealable under Section 104 (1) have either been specified therein or have been enlisted under Rule 1 of Order XLIII. The language of sub-section (1) of Section 104 provides for an absolute embargo against the remedy of appeal being available from any other order. 15. The appealable orders having been expressly provided, the remedy of appeal under Section 104 , cannot be understood to extend by implication to interlocutory appellate orders. 16. Section 104 (2) unambiguously states that no appeal shall lie from any order passed in appeal under the said section. The ambit and scope of an appeal under Section 104 is thus clearly circumscribed and the only interpretation possible is that an appeal would not lie against orders passed in appeals filed under Section 104 or Order XLIII C.P.C. 17. Section 104 (2) unambiguously states that no appeal shall lie from any order passed in appeal under the said section. The ambit and scope of an appeal under Section 104 is thus clearly circumscribed and the only interpretation possible is that an appeal would not lie against orders passed in appeals filed under Section 104 or Order XLIII C.P.C. 17. It may therefore be stated that once an appellate Court has exercised jurisdiction under Order XLIII Rule 1(r), the Code of Civil Procedure does not provide a further appeal under the same rule. 18. The embargo against filing of a further appeal under Section 104 read with Order XLIII Rule 1, being uncompromisingly absolute and strict in nature, and providing for no exception, the instant appeal which has been preferred against an order in appeal filed under Order XLIII Rule 1(r), would not be maintainable. 19. Counsel for the appellants, at this stage, submits that he may be permitted to withdraw the appeal with liberty to avail the appropriate legal remedy. 20. The appeal is dismissed in terms of the prayer so made. 21. Office to return the certified copies of the orders to the counsel for the appellants after retaining photostat copies thereof.