The Kerala High Court held that an intra-court appeal under Section 5 of the Kerala High Court Act, 1958 is maintainable against an ex parte ad interim order or any judicial order that affects the right of a party to pursue a statutory remedy. The Court clarified that even when an order appears to be interlocutory in nature, an appeal may still be maintainable if the order substantially impacts the legal rights of a party or interferes with the party’s ability to avail itself of remedies provided under statute. The ruling was delivered by a Division Bench while deciding a reference made by a Single Judge and while considering a writ appeal that questioned the maintainability of such appeals under the statutory framework governing the High Court.
The Court observed that the scope of Section 5 of the Kerala High Court Act allows parties to challenge certain judicial orders through intra-court appeals where those orders produce significant legal consequences. According to the Court, the maintainability of such appeals does not depend solely on whether the order is interim or interlocutory, but rather on whether the order affects substantive rights or restricts a party’s ability to pursue remedies available under law. The Bench therefore clarified that an ex parte ad interim order, if it has the effect of interfering with a statutory remedy or prejudicing the rights of a party, can be challenged through an intra-court appeal.
The matter arose from proceedings connected with a dispute involving actions taken under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Under Section 14 of that statute, secured creditors are permitted to approach a Magistrate for assistance in taking possession of secured assets when borrowers default on repayment of loans. In the present case, the petitioners had approached the High Court by filing a writ petition challenging an order passed by a Magistrate under Section 14 of the Act. The petitioners contended that the Magistrate’s order was issued without jurisdiction and sought relief from the High Court.
When the writ petition was initially listed before a Single Judge, the Court passed an interim order granting a stay of proceedings under the securitisation law. The interim direction restrained further action under the statute and directed the bank concerned to file its counter affidavit. This interim order was passed at the stage of admission of the writ petition and had the effect of halting the ongoing proceedings initiated under the securitisation framework.
The bank challenged this interim order by filing a writ appeal before the Division Bench. In the appeal, the bank questioned the maintainability of the writ petition itself. It argued that the petitioners had an effective alternative statutory remedy available to them under the securitisation law and therefore the writ petition should not have been entertained. The bank further pointed out that the same petitioners had earlier approached the High Court through another writ petition. According to the bank, the petitioners had not complied with the directions issued in the earlier proceedings and had nevertheless filed the present writ petition raising similar issues.
Upon considering the writ appeal, the Division Bench set aside the interim order passed by the Single Judge. The Court observed that the interim order lacked sufficient reasoning and was unsustainable in light of principles laid down by the Supreme Court in previous cases relating to the exercise of writ jurisdiction when statutory remedies are available. The Division Bench held that the interim order did not adequately consider the existence of alternative remedies and therefore could not be sustained.
While setting aside the interim order, the Division Bench clarified that its decision would not prevent the Single Judge from reconsidering the request for interim relief after examining the legal and factual issues raised in the case. The Bench stated that the Single Judge would remain free to evaluate the maintainability of the writ petition and to decide whether interim relief should be granted after hearing the parties and examining the relevant legal principles.
Subsequently, the writ petition was again taken up for consideration by the Single Judge. During these proceedings, the Single Judge passed another interim order in which it was observed that the writ petition was maintainable. The order effectively recognized the maintainability of the petition despite the objections raised by the bank regarding the existence of an alternative statutory remedy.
The bank once again challenged the order by filing another writ appeal before the Division Bench. The appeal questioned the correctness of the Single Judge’s determination regarding maintainability. The bank argued that the issue of maintainability had not been examined properly and that the relevant judgments relied upon by the bank had not been adequately considered in the order passed by the Single Judge.
When the Division Bench examined the appeal, it concluded that the order passed by the Single Judge did not properly analyze the issue of maintainability in light of the legal precedents cited by the bank. The Court observed that the reasoning provided in the order did not sufficiently address the arguments concerning the availability of alternative statutory remedies. As a result, the Division Bench set aside the order passed by the Single Judge.
Following this development, the Single Judge issued an order referring certain legal questions for consideration. The reference effectively sought clarification regarding the maintainability of writ appeals against orders passed in writ proceedings, particularly when such orders are of an interim or interlocutory nature. The matter was therefore placed before the Division Bench to determine the correct interpretation of the law governing intra-court appeals under Section 5 of the Kerala High Court Act.
While considering the reference and the connected appeal, the Division Bench examined the circumstances in which intra-court appeals can be entertained against orders passed by a Single Judge. The Court noted that Section 5 of the Kerala High Court Act provides for appeals from judgments or orders of a Single Judge to a Division Bench. However, questions often arise regarding whether such appeals can be filed against interim or interlocutory orders.
The Court explained that the determination of maintainability depends on the effect of the order rather than merely its form or designation. If an order substantially affects the rights of a party or prevents the party from exercising a statutory remedy, the order cannot be treated as a purely procedural or insignificant direction. In such cases, the Court held that an intra-court appeal would be maintainable under the statutory framework.
The Division Bench further addressed the circumstances in which the Single Judge had made the reference. The Court observed that instead of deciding the writ petition on its merits, the Single Judge appeared to have assumed a position that effectively questioned the authority of the earlier judgment delivered by the Division Bench. According to the Division Bench, the order of reference attempted to justify the exercise of jurisdiction under Article 226 of the Constitution by relying on certain decisions of the Supreme Court.
The Division Bench remarked that the Single Judge’s order suggested that the earlier judgment of the Division Bench entertaining the writ appeal might not have been appropriate because the order challenged in that appeal was interlocutory in nature. The Single Judge had indicated that such interlocutory orders might not be appealable under Section 5 of the Kerala High Court Act.
In addressing this issue, the Division Bench clarified the correct legal position. The Court stated that the maintainability of an intra-court appeal cannot be determined solely by categorizing an order as interlocutory. Instead, the crucial consideration is whether the order has the effect of prejudicing the rights of a party or obstructing the party’s ability to pursue remedies provided under law. If an order has such consequences, an appeal against it can be entertained.
The Court therefore concluded that intra-court appeals under Section 5 of the Kerala High Court Act are maintainable against ex parte ad interim orders as well as other orders that affect the right of a party to pursue statutory remedies. The Court emphasized that when an order interferes with a party’s legal rights or affects the statutory framework governing the dispute, the party must have an opportunity to challenge the order before a higher forum within the High Court itself.
Through this ruling, the Division Bench clarified the legal principles governing intra-court appeals in the High Court. The judgment explained that appeals may be entertained against interim orders where those orders have significant legal consequences, particularly when they impact statutory remedies or rights available under law. The Court thus resolved the issue raised in the reference and reaffirmed that Section 5 of the Kerala High Court Act permits appeals in such circumstances.
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