Case Note & Summary
The appellant, Sri Madhava Prabhu, filed Regular Appeal No.43/2015 before the Court of the Principal Senior Civil Judge, Udupi. In that appeal, he filed I.A.No.5 under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 (CPC) seeking a temporary injunction restraining the respondents from cutting trees or conducting a survey in the suit property. The Senior Civil Judge rejected that application by an order dated 05.12.2015. Aggrieved, the appellant presented this Miscellaneous First Appeal under Order 43 Rule 1(r) read with Section 104 of CPC before the High Court of Karnataka. The Registry raised an objection regarding the maintainability of the appeal, presumably on the ground that Section 104(2) CPC bars a second appeal against an order passed in an appeal. The High Court heard the learned counsel for the appellant on the maintainability issue. The court examined the provisions: Section 104(2) CPC states that no appeal lies from any order passed in appeal under Section 104. However, the court reasoned that the order impugned was passed by the Senior Civil Judge in a regular appeal (R.A.No.43/2015), not in an appeal under Section 104 CPC. Therefore, the bar under Section 104(2) does not apply. The court held that an appeal under Order 43 Rule 1(r) CPC is maintainable against an order passed under Order 39 Rules 1 & 2 CPC, even if that order was passed in a regular appeal, as long as it is not an order passed in an appeal under Section 104 CPC. Consequently, the court overruled the Registry's objection and directed the appeal to be listed for hearing on merits.
Headnote
A) Civil Procedure Code - Maintainability of Appeal - Order 43 Rule 1(r) CPC - Section 104(2) CPC - Interlocutory Order under Order 39 Rules 1 & 2 CPC - The court considered whether an appeal under Order 43 Rule 1(r) CPC lies against an order rejecting an application for temporary injunction under Order 39 Rules 1 & 2 CPC passed in a regular appeal. Held that Section 104(2) CPC does not bar such an appeal if the order is not passed in an appeal presented under Section 104 CPC. (Paras 1-4)
Issue of Consideration
Whether an appeal under Order 43 Rule 1(r) of CPC is maintainable against an interlocutory order passed under Order 39 Rules 1 & 2 of CPC in a regular appeal pending before the Senior Civil Judge, in light of the bar under Section 104(2) of CPC.
Final Decision
The court overruled the Registry's objection regarding maintainability and held that the appeal is maintainable. The court directed the appeal to be listed for hearing on merits.
Law Points
- Maintainability of appeal under Order 43 Rule 1(r) CPC against an order passed under Order 39 Rules 1 & 2 CPC is not barred by Section 104(2) CPC if the order is not passed in an appeal under Section 104 CPC
