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2004 (2) U.D. 196
High Court of Uttaranchal
P.C. Pant, J.
Smt. Ghafooran
Vs.
Abdul Sattar and others
Second Appeal no. 1615 of 2001
Decided on : 31.07.2004.
Second Appeal - Maintainability - Dismissal in Limine
Fact of the Case:
The appeal was filed before the Allahabad High Court under U.P. Re-organisation Act, 2000. The lower Court decided a civil appeal u/s 104 read with Order 43, Rule 1 of the C.P.C. against the rejection of an application for temporary injunction.
Finding of the Court:
The Court found that a second appeal under Section 100 of the Code of Civil Procedure, 1908 is maintainable only against decrees passed by lower appellate Court in an appeal against the decree passed by the trial Court. As no decree had been passed by either the trial Court or the lower appellate Court, the second appeal was held to be not maintainable and was dismissed in limine at the stage of admission.
Issues: The main issue was the maintainability of the second appeal under Section 100 of the Code of Civil Procedure, 1908.
Ratio Decidendi: The Court interpreted the provisions of Section 100 of the Code of Civil Procedure, 1908 and held that a second appeal is maintainable only against decrees passed by lower appellate Court in an appeal against the decree passed by the trial Court.
Final Decision: The appeal was dismissed in limine as not maintainable at the stage of admission.
This appeal was filed before the Allahabad High Court in the year 1991 and received by transfer to this Court under U.P. Re-organisation Act, 2000.
2. This case is listed today for admissions/orders.
3. Perusal of the impugned order shows that learned lower Court has decided misc. civil appeal No. 89 of 1990 u/s 104 read with Order 43, Rule 1 of the C.P.C. as it was an appeal before lower appellate Court against the order of the trial Court whereby application for temporary injunction was rejected.
4. Second appeal under Section 100 of the Code of Civil Procedure, 1908 is maintainable only against the decrees passed by lower appellate Court in an appeal passed against the decree passed by the trial Court. In the present case no decree has been passed either by the trial Court or by the lower appellate Court. As such no second appeal is maintainable u/s 100 of the Code of Civil Procedure, 1908.
5. The appeal is dismissed in limine as not maintainable at the stage of admission.
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