By the Court.—This is an appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 by the husband against the order of the learned single Judge dated 18.8.2008 passed in a transfer application under Section 24, C.P.C. transferring divorce petition No. 1020 of 2006 Amit Khanna v. Smt. Suchi Khanna from Family Court, Kanpur Nagar to the Family Court at Lakhimpur Khiri.

2. At the very outset the Court confronted the learned counsel for the appellant about the maintainability of this special appeal in view of the ratio of Jagdish Kumar v. District Judge, Budaun, 1998 (1) ARC 305. In the said case the single Judge has laid down that an order passed under Section 24, C.P.C. is neither appealable nor revisable. However, it can be subject to test under supervisory jurisdiction of the High Court provided it has been passed by the District Court and against an order passed by the High Court remedy under Section 25, C.P.C. is available before the Supreme Court. It has further been held that an order relating to transfer of case from one Court to another is not a ‘Judgment’ within the meaning of clause 10 of the Letters Patent by which the High Court of Judicature at Allahabad was created.

3. In view of above, a vexed question which arises for consideration in this appeal is whether the order passed by the learned single Judge on a transfer application under Section 24 C.P.C. either allowing or rejecting the same is a ‘judgment’ within the meaning of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 which can be subjected to an intra Court appeal before a Division Bench.

4. We have heard Sri Rahul Jain learned counsel for the appellant and Sri M.L. Maurya learned counsel for the respondent on the above preliminary point of maintainability of this appeal.

5. The Letters Patent dated 17.3.1866 which provided for intra Court appeal, commonly known as special appeal, was amended and with the enforcement of the United Provinces High Court (Amalgamation) Order, 1948 ceased to have effect for certain limited purposes but the jurisdiction of special appeal was saved by Clause 17(a) of the Amalgamation Order. Later on, in exercise of powers under Article 225 of the Constitution of India Allahabad High Court Rules, 1952 were framed wherein Chapter VIII Rule 5 was enacted providing for special appeal virtually repeating the provision in this regard as was contained in the Letters Patent as it stood before the enforcement of the Constitution.

6. With the enactment of U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 the aforesaid Rules were amended abolishing special appeals against certain categories of judgments. Therefore, Chapter VIII Rule 5 of the Rules of the Court is nothing but the repetition of clause 10 of the Letters Patent with certain amendments on account of Letters Patent Appeals Abolition Act, 1962. The said clause 10 of the Letters Patent of the Allahabad High Court is pari materia with similar clauses in other Letters Patent. Rule of Chapter VIII of the Allahabad High Court Rules, 1952 as it stand amended as on date is reproduced :

“5. Special Appeal.—An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in exercise of revisional jurisdiction or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award—(a) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported