ORDER :

Vinay Joshi, J.

1. Heard.

2. At the threshold, controversy arose to the extent, whether the respondent/caveator can be heard at the initial stage of the second appeal? The learned Counsel for appellant would submit that the scheme under Section 100 of the Code of Civil Procedure (herein after referred to as 'the Code') nowhere contemplates a stage to hear respondent even before formulating substantial question of law. According to him, after hearing appellant, it is for the satisfaction of the Court about existence of substantial questions of law, in which respondent has no role. The learned counsel for appellant would submit that in terms of Sub-clause (5) of Section 100 the of the Code, after issuance of notice, the respondent would get jurisdiction to advance submission to resist the appeal on the questions so formulated by the Court.

3. As against this, the learned counsel for respondent submitted that there is no prohibition in the Code so as to deny right of hearing to respondent at initial stage of the appeal. According to him, at initial stage, while entertaining second appeal, the Court has to formulate substantial questions of law before issuance of notice to the respondent. At this stage also respondent can assist the Court about existence or non-existence of substantial questions of law. He has also referred the commentary on the Code of Civil Procedure by Shri Justice C.K. Thakkar, Judge, Supreme Court of India (Retd.), First Edition 2012, Volume 6 pertaining to the admission of second appeal. It is his contention that the very legislative intention is to weed out uncalled second appeals at the initial stage.

4. Being aggrieved and dissatisfied by the judgment and decree passed by the learned District Judge-5, Amravati in R.C.A. No. 350/2000, this appeal is preferred by the original defendant Nos. 6 and 7. Needless to say that at initial stage after hearing appellant or his counsel, if the Court is satisfied that substantial questions of law are involved in the case, the Court has to formulate such questions and to issue notice to other side. The learned counsel for the appellant before advancing argument, stated that the hearing may not be given to respondent since no such stage is provided under the Code. In this regard, he relied on the judgment of Hon'ble Supreme Court in case of Surat Singh (dead) Vs. Siri Bhagwan and others, (2018) 4 SCC 562. Appellant would submit that the respondent has right under Section 100(5) of the Code to raise objections that questions framed by this Court under Sub-clause (4) of section 100 of the Code does not involve in the appeal, and that stage would come after formulation of question. Both the learned counsel requested to answer this controversy at initial stage. Both equally submitted that they are unable to find any precedent on this point.

5. Second appeal lies in terms of Section 100 of the Code which reads as under:-

"100. Second appeal - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex - parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or a bride the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not fo