By the Court.—Heard Sri A.S. Rai, learned counsel for the appellant and Sri M.B. Tiwari, learned counsel for opposite party.

2. This appeal under Chapter VIII Rule 5 has been preferred questioning the very jurisdiction of the learned Single Judge to entertain the application under Section 24 Code of Civil Procedure (CPC) before this Court on the ground that the entire cause of action and the pendency of the dispute relates to the Court of Principal Judge, Family Court, Allahabad.

3. A copy of the order sheet has been filed before us which is taken on record.

4. Learned counsel for opposite party has raised a preliminary objection with regard to maintainability of the appeal.

5. We have heard learned counsel on the said issue and we have also gone through the relevant judgements in this regard.

6. Chapter VIII Rule 5 of the Allahabad High Court Rules makes a provision for appeal against the orders of learned Single Judges which is an intra-Court appeal subject to the limits provided therein. The dispute in the present appeal arises out of an application filed under Section 24 CPC before the learned Single Judge of this Court in a cause of action relating to the Family Court at Allahabad. A Division Bench of this Court in the case of Amit Khanna v. Smt. Suchi Khanna, 2009 (1) AWC 929, considered the same issue and came to the conclusion in paragraph 21 as follows:

“21. According to above provision no appeal is maintainable from any order of the Court passed in exercise of its original or appellate jurisdiction, except against orders which have been made appealable under Section 104 C.P.C. Undisputedly, an order passed on an application under Section 24 C.P.C. has not been made appealable under any provision of the C.P.C. including Section 104 C.P.C. Right to appeal is not inherent unless it is specifically provided by the statute. Since the Code of Civil Procedure does not specifically provide for an appeal against an order passed on a transfer application and at the same time by implication excludes an appeal against such an order by virtue of Section 105 C.P.C., therefore, merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by Section 105 C.P.C. Thus, in the above scenario the right of special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the same is independent to the provisions of C.P.C., against the order of the single judge passed on a transfer application under Section 24 C.P.C. stands impliedly excluded.”

7. Learned counsel for the appellant faced with the said proposition invited the attention of the Court to a compilation of judgements filed on behalf of the appellant as well as the judgement of the Apex Court in the case of Midnapore Peoples’ Coop. Bank Ltd. v. Chunilal Nanda and others, (2006) 5 SCC 399. He has further relied upon the judgement in the case of I.N.G. Vysya Bank Ltd. v. Shamken Spinners Ltd., 2011 (1) ACJ 678, Om Prakash Dwivedi v. State of U.P. and others, 2013 (3) ACJ 2561 and Prof. Y.C. Simhadri v. Deen Bandhu Pathak, 2001 (2) ACJ 1549. He has then invited the attention of the Court to the consideration of Sections 104 and 105 CPC in the judgement in the case of Subal Paul v. Malina Paul and another, 2003 (5) JT 193 and on the strength thereof, has urged that the judgment in the case of Amit Khanna (supra) by the Division Bench of the High Court which is a later decision, has not noticed the aforesaid ratio, as such, the same does not correctly explain the law.

8. He submits that a special appeal would be maintainable particularly on the facts of the present case inasmuch as there is a patent lack of the jurisdiction in entertaining an ap