IMPORTANT POINT
Maintainability of Special Appeal – Order passed under Section 24 CPC is not a judgment and appeal is not amenable on this count under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952.

JUDGMENT

Rajan Roy, J.—Heard Shri Vinay Mohan -appellant in person and Shri Vikas Pandey, learned counsel appearing for the respondent no.1.

2. This is an appeal under Chapter VIII, Rules 5 of the Allahabad High Court Rules, 1952 challenging a judgment and order dated 20.05.2025 passed by learned Single Judge of this Court in Transfer Application (Civil) No. 166 of 2022.

3. Though, the appellant appearing in person sought to address the Court on merits of the matter, but, first and foremost the question arose as to whether this appeal against the order impugned is maintainable under Chapter VIII, Rules 5 of the Allahabad High Court Rules, 1952 or not ? The aforesaid provision reads as under:-

“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 the exercise of revisional jurisdiction or in the exercise of its power of Superintendence 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 to be made in the exercise or purported exercise of Appellate or Revisional jurisdiction under any such Act of one Judge.”

4. It is true that the order has been passed on an application under Section 24 of the Code of Civil Procedure, 1908 which is not in exercise of any appellate or revisional jurisdiction but under the jurisdiction vested in the High Court under Section 24 of the CPC. First and foremost it has been held in a catena of decisions that such an order passed under Section 24 CPC is not a judgment within the meaning of the term as used in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and similar provisions contained in Letter Patent Appeal Rules etc. pertaining to other High Courts. We may in this context refer to a co-ordinate Bench judgment rendered in the case of Amit Khanna Vs. Smt. Suchi Khanna reported in 2009 (1) AWC 929, wherein this issue was considered at length and referring to various decisions including the judgment of Hon’ble the Supreme Court reported in Asrumati Debi v. Kumar Rupendra Deb Raikot AIR 1953 SC 198; it was opined that an order of transfer under Section 24 is not a judgment within the meaning of Clause 15 of Letters Patent (Culcutta) and, therefore, is not appealable under the said provision. Such an order neither affects the merit of the controversy between the parties to the suit nor does it terminate or dispose of the suit on any ground. Therefore, an order of transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground. In this context the Division Bench also considered the Supreme Court decision reported in Midnapore Peoples’ Coop. Bank Ltd. and Ors. Vs. Chunilal Nanda and Ors. (2006) 5 SCC 399; and the decisions cited therein. The Division Bench ultimately opined that an order passed by the learned Single Judge of this Court on a transfer application falls in the category 4 or 5 (Para 11) as categorized in Midnapore’s case (supra), meaning thereby, it was either a routine order which was passed to facilitate the progress of the case till its culmination in the final judgment or it was an order which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. Such an order is made only to facilitate the final decision but it in