Second Appeal Under Section 100 CPC Not Maintainable Against Orders Passed In Appeal U/S 104: Allahabad High Court

The Allahabad High Court has held that no appeal shall lie before a High Court on the strength of Section 100 of the Civil Procedure Code, 1908 from orders passed in an appeal under Section 104 CPC.

Section 100 CPC provides that an appeal can lie to the High Court from every decree passed in appeal by any subordinate court, so long as the case involves a substantial question of law.

Section 104 CPC provides miscellaneous civil appeals.

“An order passed in miscellaneous appeal under Order XLIII Rule 1(r) is an 'order in appeal under Section 104', from which Section 104(2) bars any further appeal,” held Justice Yogendra Kumar Srivastava.

The plaintiff's second appeal filed under Section 100 was against an order passed by the District Judge, Ballia on 20.03.2025.

On a reading of the statute, the Court observed that under the CPC, orders defined under S. 2(14) were distinct from decrees as under Section 2(2) of the Code. Further, it held that as per Order XLIII Rule (1), once appeals under Section 104(1) were decided, they could not be further appealed. Such an appeal would be precluded by Section 104(2) of the Code.

"The bar under Section 104(2) is complete and absolute. It states: 'no appeal shall lie from any order passed in appeal under this Section”. This is to say that there is no remedy of a second miscellaneous appeal and no second appeal under Section 100, against an order passed in an appeal under Section 104(1)."

The Court held that Section 100 was explicit in stating that a second appeal may lie before a High Court only in the case of a decree and not an order. Finding that in the present case, the appellant was aggrieved by an order under Section 104 read with Order XLIII Rule 1(r), the appeal was dismissed.

Case Title: Tarkeshwar Pandey v. Deena Nath Yadav And 6 Ors. [SECOND APPEAL No. - 723 of 2025]

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