Second Appeal Under Section 100 CPC Not Maintainable Against Orders Passed in Appeal Under Section 104: Allahabad High Court

 

The Allahabad High Court has ruled that a second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) cannot be maintained against an order passed in a miscellaneous appeal under Section 104 CPC. The Court clarified that the scope of Section 100 CPC is confined to appeals arising from decrees passed in appeal by a subordinate court, provided that the case involves a substantial question of law. Since orders passed under Section 104 CPC are not decrees, they cannot be subjected to a second appeal under Section 100.

The matter came before the High Court after an appellant challenged an order of the District Judge that dismissed a miscellaneous appeal filed under Order XLIII Rule 1(r) CPC, read with Section 104 CPC. The appellant attempted to invoke Section 100 CPC to file a second appeal before the High Court, contending that the impugned order should be treated as a decree. The Court rejected this argument, observing that Section 104(2) CPC explicitly bars any further appeal from an order passed in appeal under Section 104, thereby closing the door to a second appeal.

In its analysis, the Court referred to the definitions under the CPC, noting that Section 2(14) defines an “order,” while Section 2(2) defines a “decree.” The Court observed that the impugned decision, being an order passed in a miscellaneous appeal, does not qualify as a decree. Since Section 100 CPC allows a second appeal only from decrees passed in appeal, the High Court held that the present case fell outside the ambit of that provision.

The bench further emphasized that permitting such an appeal would amount to circumventing the statutory bar created by Section 104(2) CPC. The Court stressed that procedural law is designed to ensure certainty and discipline in the appellate process, and allowing a second appeal in such cases would create unnecessary complications and undermine the purpose of the statutory scheme.

Accordingly, the High Court dismissed the appeal as not maintainable. It reaffirmed that the jurisdiction of the High Court under Section 100 CPC is limited to cases involving decrees passed by subordinate courts and substantial questions of law. Orders arising from appeals under Section 104 CPC, being interlocutory and not decrees, cannot be further appealed under this provision.

This decision reinforces the procedural clarity established by the Code of Civil Procedure and serves as a reminder to litigants and practitioners that the maintainability of appeals depends strictly on the nature of the order being challenged. The ruling underscores that second appeals under Section 100 CPC cannot be used to bypass the express limitations set by Section 104(2), thereby ensuring adherence to the statutory hierarchy of appeals.

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