Allahabad High Court on Maintainability of Second Appeal under Section 104(2) CPC, Appeal from Order not Maintainable

Headnote:

The Allahabad High Court held that a second appeal filed against an appellate order passed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 is not maintainable in view of the express bar under Section 104(2) CPC. The Court emphasized that once an appellate court has exercised jurisdiction in an appeal against an interlocutory order—such as one granting or refusing temporary injunction—no further appeal lies. The appeal was consequently dismissed as not maintainable, though liberty was granted to the appellants to seek an appropriate legal remedy.

Background:

1. The appellants (plaintiffs) filed an appeal under Order XLIII Rule 1(r) CPC against the order dated 15.07.2025 passed by the District Judge, Hapur, in Misc. Civil Appeal No. 03 of 2025 (Dhoom Singh & Another v. Chandra Pal Singh & Others).
2. The District Judge had allowed the appeal and set aside the earlier order dated 24.12.2024 of the Civil Judge (Junior Division)-I, Hapur, which had granted a temporary injunction under Application 6C2 in Original Suit No. 125 of 2024.
3. The appellants contended that since their injunction had been vacated by the appellate court, they were entitled to maintain a further appeal before the High Court.

Court’s Observations:

1. The Court examined Section 104 CPC, which specifies the orders from which an appeal lies, and Order XLIII Rule 1, which lists appealable orders.
2. Under Section 104(2), “no appeal shall lie from any order passed in appeal under this section.”
3. The Court held that once a party avails an appellate remedy under Order XLIII Rule 1, no further appeal lies against such an appellate order.
4. The embargo in Section 104(2) is absolute and admits no exceptions, restricting the right of further appeal.
5. Therefore, an appeal against an order passed in an appeal filed under Order XLIII Rule 1(r) is barred by law and cannot be entertained.
6. Upon request by the counsel for the appellants, the Court permitted withdrawal of the appeal with liberty to pursue any other legal remedy available under law.

Legal Provisions Discussed:

1. Section 104, Code of Civil Procedure, 1908: Orders from which appeal lies; sub-section (2) prohibits further appeal from an appellate order under this section.
2. Order XLIII Rule 1(r), CPC: Provides for appeal against an order granting or refusing temporary injunction.
3. Section 2(14), CPC: Defines “order” as the formal expression of any decision of a Civil Court which is not a decree.
4. Section 105, CPC: Restricts appeals from interlocutory orders unless expressly provided.

Citation: 2025:AHC:176697

Case: Chandra Pal Singh & 3 Others v. Dhoom Singh & Another

Court: High Court of Judicature at Allahabad

Coram: Hon’ble Dr. Justice Yogendra Kumar Srivastava