Allahabad High Court Dismisses Second Appeal in Tarkeshwar Pandey Case

Second Appeal under Section 100 of CPC Not Maintainable Against Order in Miscellaneous Civil Appeal

In a significant ruling, the Allahabad High Court, presided over by Dr. Yogendra Kumar Srivastava, J., dismissed the second appeal filed by Tarkeshwar Pandey against an order in a miscellaneous civil appeal, emphasizing the provisions of the Code of Civil Procedure, 1908 (CPC). The court reiterated that a second appeal under Section 100 of the CPC is not maintainable against an order passed under Section 104(1) read with Order XLIII Rule 1(r), as it does not constitute a decree.

The case originated from an order dated March 20, 2025, passed by the District Judge, Ballia, in Civil Appeal No. 123 of 2023. This appeal was filed against an earlier order rejecting an injunction application by Pandey. The second appeal was contested on the grounds that it was filed against a non-decree order, thus rendering it non-maintainable under Section 100 CPC.

During the hearing, counsel for the appellant, Sri Ram Brij Napit, argued for the maintainability of the appeal, suggesting that it should be allowed since it arose from an appellate jurisdiction. However, this was countered by the respondents' counsel, Sri Bhrigu Jee Singh, who clarified that the appeal under Section 100 CPC is only permissible from a decree and not from an order in a miscellaneous appeal.

The court, referencing the distinct definitions of 'decree' and 'order' under the CPC, highlighted that a decree conclusively determines the rights of parties and is appealable under Section 100, provided it involves a substantial question of law. Conversely, an order, especially under Order XLIII Rule 1, is appealable under Section 104(1), with Section 104(2) barring any further appeals.

Ultimately, the court dismissed Pandey's appeal, allowing him to withdraw it with the liberty to seek an appropriate legal remedy. The judgment reinforces the procedural boundaries set by the CPC, ensuring clarity on the nature of appeals permissible under the existing legal framework.

Bottom Line:

Second appeal under Section 100 of the Code of Civil Procedure, 1908 is not maintainable against an order passed in a miscellaneous civil appeal under Section 104(1) read with Order XLIII Rule 1(r), as it is not a decree.

Statutory provision(s): Section 100 of the Code of Civil Procedure, 1908, Section 104(1) of the Code of Civil Procedure, 1908, Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, Section 104(2) of the Code of Civil Procedure, 1908.

Tarkeshwar Pandey v. Deena Nath Yadav, (Allahabad) : Law Finder Doc Id # 2806078