Back
IN THE HIGH COURT OF CALCUTTA
Arun Mishra, Sanjib Banerjee and Joymalya Bagchi, JJ.
Sabyasachi Chatterjee - Appellants
Vs.
Prasad Chatterjee & Ors. - Respondent
AND
Gopal Das Bagri - Appellants
Vs.
Brij Mohan Benani & Anr. - Respondent
C.O. Nos. 1862 and 2310 of 2011
Decided On: 22.02.2013
APPEAL - MAINTAINABILITY - INTERLOCUTORY ORDER - APPELLATE COURT - CIVIL PROCEDURE CODE, 1908 - SECTION 104(2), 105(1), 107(2), 108, 141, 151, ORDER XXXIX RULES 1 AND 2 - ORDER XLIII RULE 1(R).
Fact of the Case:
Two references were made to the High Court under Article 227 of the Constitution of India, challenging the maintainability of appeals from interlocutory orders passed by appellate Courts in two separate matters. In the first case (CO No. 1862 of 2011), the order impugned was an interlocutory injunction granted by an appellate Court in an appeal from a decree. In the second case (CO No. 2310 of 2011), the order challenged was an interlocutory injunction passed in proceedings under Sections 73 and 74 of the Indian Trusts Act, 1882.
Finding of the Court:
1. An appeal does not lie from an interlocutory order passed in an appeal from a decree, as per Section 104(2) of the Code of Civil Procedure, 1908. 2. The authority of an appellate Court to exercise the same powers as are conferred by the Code, and the obligation of the appellate Court to perform as nearly as may be the same duties as are imposed by the Code, on Courts of original jurisdiction may not be as wide in scope in an appeal from an interlocutory or interim order as in an appeal from a decree. 3. The source of authority of an appellate Court to make an interlocutory order of injunction in an appeal from a decree is only under Section 107(2) of the Code and not under Order XXXIX or the like of the Code. 4. The substantive provisions of the Code are not extended to miscellaneous proceedings or other civil proceedings not governed in terms by the Code, even though the procedure under the Code applicable to suits stands extended to such proceedings under Section 141 of the Code. 5. The right of appeal is a substantive right and cannot be seen to have been conferred by implication in Section 141 of the Code extending the procedure under the Code applicable to suits to miscellaneous proceedings and other civil proceedings not governed in terms by the Code.
Issues: 1. Whether an appeal lies from an interlocutory order passed by an appellate Court in an appeal from a decree? 2. Whether the provisions of Order XXXIX of the Code of Civil Procedure, 1908 apply to interlocutory orders passed by appellate Courts in appeals from decrees? 3. Whether Section 141 of the Code of Civil Procedure, 1908 extends the substantive provisions of the Code to miscellaneous proceedings or other civil proceedings not governed in terms by the Code?
Ratio Decidendi: 1. The bar under Section 104(2) of the Code of Civil Procedure, 1908 is absolute and there is no corresponding bar in Section 96 of the Code covering appeals from decrees. The reason for the distinction is that the rules appended to the Code provide for appeals arising out of certain orders passed in an appeal from a decree as in clauses (s), (t) and (u) of Order XLIII Rule 1 of the Code. 2. The interlocutory order of injunction passed by the appellate Court is only under Section 107(2) of the Code and not under Order XXXIX or the like of the Code. In the pyramidical structure of the hierarchy of Courts in this country; the opportunities of judicial review by way of appeals against judicial pronouncements of Courts of original jurisdiction are more than the opportunities of judicial review by way of appeals against judicial pronouncements of appellate Courts. 3. The substantive provisions of the Code do not apply in terms to miscellaneous proceedings or other civil proceedings not governed by the Code. As a consequence, an order passed in any miscellaneous proceedings or other civil proceedings not governed by the Code cannot be regarded as an order under the substantive provisions of the Code despite the authority akin to the substantive provisions having been exercised to make the order.
Final Decision: The High Court held that no appeal is maintainable from the order impugned in CO No. 1862 of 2011, whether under Order XLIII Rule 1(r) of the Code or otherwise; and; that no appeal would lie from the order impugned in CO No. 2310 of 2011.
Sanjib Banerjee, J.
1. The primary similarity in these two references is in their posing the identical ultimate question: whether a petition under Article 227 of the Constitution of India ought to be entertained in either case. Before any discussion even on the circumstances in which these references came to be made, some ground rules need to be established by the reiteration of a few axiomatic principles. To begin with, every High Court exercises plenary powers of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This overwhelming prerogative--not necessarily to merely correct orders but to keep the subordinate fora within the bounds of their authority--is subject to a self-imposed restraint exercised by the High Courts in ordinarily not entertaining any matter for judicial review under Article 227 of the Constitution of India if there is an efficacious alternative remedy available to the person seeking to invoke the jurisdiction. It is fundamental that the existence of an efficacious alternative remedy does not make a petition otherwise amenable under Article 227 of the Constitution to be not maintainable; it is just that the High Court will not allow this extraordinary jurisdiction to be invoked if it recognises that there is another effective mode of redressing the perceived wrong complained of. Secondly, the right of appeal is a substantive right which is only created by a statute and such right does not inhere in any person. Unlike under Section 9 of the Code of Civil Procedure, 1908 which has room enough to accommodate all civil complaints by way of a suit unless expressly prohibited by law or barred by inescapable necessary implication, there is no implied right of appeal unless it is expressly conferred. Thirdly, if there is a specific provision in any law for a particular purpose, the general or residuary provision in the same body of law or elsewhere cannot be invoked for the same purpose. Finally, notwithstanding how a petition is intituled, or its nomenclature, and despite an erroneous reference to the source of authority in any petition or an order thereon, it is only the nature of the petition and the character of the order that have a telling impact on the purport thereof, particularly in determining whether the order is amenable to an appeal.
2. CO No. 1862 of 2011 is a petition under Article 227 of the Constitution arising out of an interlocutory order passed in course of an appeal from a preliminary decree in a partition suit. The authority of the appellate Court to make an interlocutory order of injunction was invoked by referring to Order XXXIX Rules 1 and 2 of the Code read with Section 151 thereof. Upon the petition under Article 227 of the Constitution being received on July 14, 2011, the Single Bench noticed that there were two recent Division Bench decisions of this Court reported at (2007) 3 Cal HN 166 (Jamuna Chakraborty v. Sital Chakraborty) and at (2011) 2 Cal LT (HC) 144: (2011) 2 WBLR (Cal) 434 (Shrimati Mamata Guha v. Pranab Kumar Das), which held that in similar situations no appeal would be available from an interlocutory order of injunction passed by an appellate Court. It was also observed that a contrary view was taken in two other Division Bench judgments reported at (2004) 1 Cal HN 1 (Sushil Kumar De v. Chhaya De) and at AIR 2007 Cal 154 (Raj Kumar Rowla v. Manabendra Banerjee). The question formulated for the reference is as follows:
Whether, having regard to the facts and circumstances involved in this revisional application, an appeal is maintainable against the impugned order under Order 43 Rule 1(r) of the Civil Procedure Code or not?"
3. In CO No. 2310 of 2011, in proceedings under Sections 73 and 74 of the Indian Trusts Act, 1882, an interlocutory application invoking Order XXXIX Rules 1 and 2 read with Section 151 of the Code was filed. From the order on such application, a petition under Article 227 of th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
