Sree Narayana Dharma Samajam vs Mohandas

Hon''ble Mrs. Justice D. Sreedevi

This CRP is directed against the order of the District Judge in C.M.A. No. 18/99 on the file of III Additional Sub Court, Ernakulam, which was filed against the order dtd. 17.6.1999 on I.A. No. 2834/99 in O.S. No. 690/99 on the file of the II Additional Munsiff''s Court, Ernakulam. The learned counsel appearing for the respondent submitted that the CRP is not maintainable as an order in C.M.A. is appealable under Order 43 Rule l(r) C.P.C. According to the learned counsel for the petitioner, Section 104(2) of the CPC specifically bars appeals and hence CRP alone is maintainable. S.104 deals with appeals from orders. Section 104(2) provides as follows:

No appeal shall lie from any order passed in appeal under this Section.

The earliest decision on this point is Chellappan and another v. K.P.Varughese and another (AIR 1964 Kerala 23): While dealing with Section 104(2), 107, 115 and order XLIII Rule 1 Justice Madhavan Nair held as follows:

the appeal to the High Court against an interlocutory order passed by a District Judge in an Appeal under S. 104 read with Order XLIII CPC was incompetent and therefore liable to be dismissed in limine; that as no case for a revision under S. 115 CPC was made out, no useful purpose would be served by the conversion of this appeal into a revision,

The Madras High Court in Kalahasti vs. Munuswami Chetti,(AIR 1975 Madras 3) held as follows:

Sections 107(2),104,105 and Order 43, Rule 1, do not have the effect of rendering an appellate court a court of original jurisdiction when exercising its powers to pass incidental orders.

Inasmuch as reference is made to Section 104 in Order 43, Rule 1, right of appeal given against the orders enumerated in Order 43, Rule 1 will be subject to stipulation contained in Section 104(2). Moreover, because of the use of the words "Original or appellate jurisdiction" in Section 105 the court can only exercise either original or appellate jurisdiction but not both at one and the same time. Further more, the legislature would not have intended to confer the advantage of a second appeal in respect of orders passed under the Code when even appeals from appellate decrees are required to satisfy the conditions laid down in Section 100, Civil P.C.

The Madras High Court in another case Ramaswamy Reddiar and others v. Chinna Sithammal and others (AIR 1976 Madras 63) held that in order to attract Section 104(2), the appeal should be one falling u/s 104. If the appeal is one u/s 96, Section 104(2) is not applicable. Order '' XLIII Rule (i) (t) and (u) provide for appeals against orders passed under one provision or other of Order 41, which governs appeals coming under S. 96. The said two sub-clauses cannot possibly refer to any order by a trial court. These two provisions would become meaningless if Section 104(2) is made to apply to appeals under S. 96. Goa Daman & Dieu High Court in the decision reported in Domlu Guno Gaudo & others v. Yeshadabai Ganesh Naik and another held that the incidental orders passed by an appellate court in interlocutory applications moved in appeal before it are "orders passed in appeal" within Sub Sec. (2) of Sec. 104. Appeal against such orders is incompetent. Our High Court in the decision reported in Moideen Kutty v. Kadalundy Panchayath and another (ILR 1991(3) Kerala 497 held that Section 104 delas with appeals from orders. Clause (1) of Section 104 provides that an appeal shall lie from an order made under rules from which an appeal is expressly allowed by Rules. Under Order XLIII Rule l (r), an appeal shall lie from an order passed in an application under Order XXXIX Rule 1, Rule 2, 7 (Rule 2A), Rule 4 or Rule 10 for temporary injuction. Sub Section 2 of Section 104 bars an appeal from an interim order passed in appeal filed u/s 104 CPC. This Court in the decision reported in Somavally v. Appavu Nadar (1980 KLT 907) also held that order of the Appellate Court dismissing injunction application in a Civil Miscellaneous Appeal is not appealable.

Therefore, I find that only a revision will lie against the order in CMA under S. 115 CPC. Ordered accordingly.