The court established that an order under Article 227 is not subject to intra-court appeal and that jurisdiction classification hinges on the substance of the case rather than the specific article invoked.

JUDGMENT :

KRISHNA S. DIXIT, J.

A returned candidate in the Grama Panchayat election, who happens to be Sarpanch, is invoking Intra-Court appellate jurisdiction for laying a challenge to a learning Single Judge’s order dated 21.07.2025, whereby his WP(C) No.28275 of 2022 has been negatived. In the said Writ Petition, he had called in question the order dated 29.09.2022 passed by learned Civil Judge (Jr. Division) in pending Election Misc. Case No.20 of 2022, whereby the delay in filing the challenge has been condoned.

2. Learned counsel appearing for the Appellant vehemently submits that the order of the learned Single Judge is liable to be voided on the following grounds:

(a) Learned Single Judge grossly erred in holding that, against order of the Civil Judge an appeal lies under section 38(4) of the Odisha Grama Panchayat Act, 1964, when the consistent view of this Court is to the contrary;

(b) Learned Single Judge would not have held that the Coordinate Bench’s decision inNiranjan Sahu v. Narasu Satpathy, AIR 1970 ORI 46 , is per incuriam in view of decision in Digambar Pradhan v. Arjun Pradhan 1972(1) C.W.R. 74.

(c) When the impugned order does not in so many words say under which Article, i.e., whether under Article 226 or under Article 227 or under both, the power is exercised by the learned Single Judge, it should be presumed that the same has been rendered in exercise of Article 226 jurisdiction and not Article 227; therefore, the Intra-Court Appeal is maintainable.

(d) Learned AGA Mr. Behura on our request accepting notice for the 2^nd Respondent with equal vehemence resisted the appeal on the ground of maintainability pressing into service a Full Bench decision of this Court inMahammed Saud v. Dr. (Maj) Shaikh Mahfooz, AIR 2009 ORI 46 . Learned Single Judge has exercised power under Article 227, notwithstanding, the employment of Article 226 in the pleadings of Appellant; Articles 226 & 227 are habitually employed in the pleadings of parties and therefore, that should not be the decisive factor in deciding which of the Articles has been invoked while rendering the impugned order. Lastly, he submits that by virtue of referential application of the provisions of the CPC 1908, the Appellant should have awaited passing of the final order in the Election Petition and if the same is to be decided adverse to his interest, then he will have a choate right to knock at the doors of Writ Court or such other authority.

3. Having heard learned counsel appearing for the parties and having perused the Appeal papers, we decline indulgence in the matter, inasmuch as the Full Bench in Mahammed Saud supra has held that if an order is passed under Article 227 by the learned Single Judge, it is not appealable. Paragraph 47(3) reads as under:

“47(3) A writ appeal shall lie against the judgment/orders passed by a learned single Judge in a writ petition filed under Art. 226 of the Constitution of India. In a writ application filed under Arts. 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Art. 226, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/decree passed by a single Judge exercising powers of superintendence under Art. 227 of the Constitution.”

3.1. The vehement submission of learned counsel appearing for the Appellant-Sarpanch that in deciding what jurisdiction was exercised by the learned Single Judge, regard should be had to the substance of the litigation, is true. Shortly put, the substance of the litigation is challenge to an interlocutory order of the learned Civil Judge (Jr. Division), who has condoned delay in launching challenge to the election of the Appellant as Sarpanch. No order is passed on the main challenge, which is still pending consideration on his file. Ad