Special Appeal Against Transfer Order Under Section 24 CPC Not Maintainable As It Is Not A 'Judgment': Allahabad High Court

The Allahabad High Court has held that special appeal against an order on transfer applcation under Section 24 of CPC is not maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 as such an order is not a judgment.

The bench of Justice Rajan Roy and Justice Prashant Kumar held

“an order passed under Section 24 CPC is not a judgment, therefore, an appeal is not amenable on this count under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.”

Section 24 CPC provides for powers of the High Court or the District Court to transfer or withdraw any suit or proceedings on its own motion or by an application made by the either party/ parties.

The appellant-respondent (husband) and respondent-petitioner were married on 22.02.2018. Male child was born from wedlock, but relations between wife and husband soured on account of demand of dowry. The wife was driven from her matrimonial home and was residing with her parents and minor son.

Respondent-petitioner (wife) preferred a transfer application under Section 24 of CPC seeking transfer of a case under Section 12(1)(b) of the Hindu Marriage Act from Lucknow to Moradabad. On 20.05.2025, the High Court transferred the matter from the Principal Judge, Family Court, Lucknow to the equivalent court at District Moradabad.

Aggrieved, the husband preferred the Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952.

The Court at the outset noted that the issue of maintainability of the order impugned ought to be decided first.

The order impugned was passed under Section 24 of CPC. It was observed that a catena of judgments held that such an order is not a judgment within the meaning of the term as used in Rule 5, Chapter VIII.

The Court relied on a decision of a coordinate bench in Amit Khanna vs. Smt. Suchi Khanna, which referred to the decision of the Supreme Court in Asrumati Debi v. Kumar Rupendra Deb Raikot wherein it was held that order under Section 24 was not appealable as it was not a judgment under Clause 15 of Letters Patent (Culcutta).

It was observed that such an order does not affect the merits of the controversy between parties to the suit, and nor does it terminate or dispose of the suit on any ground. An order of transfer cannot be placed in the same category as an order rejecting a plaint or dismissing a suit on a preliminary ground, held the Court.

In Amit Khanna's case it was also held that transfer order was either a routine order passed to facilitate progress of a case till its culmination, or an order which caused some inconvenience/prejudice to a party but did not finally determine the rights and obligations of parties. Such an order cannot be called a judgment.

The bench headed by Justice Roy held that an appeal against order passed under Section 24 is not prescribed under Section 104 CPC, and is specifically excluded by Section 105 CPC.

It held that “no appeal is maintainable from any order of the Court passed in exercise of its original or appellate jurisdiction except against orders which have been made appealable under Section 104 CPC. Right to appeal is not inherent unless it is specifically provided by the statute.”

It further held that

“Since the Code of Civil Procedure does not specially provide for an appeal against an order passed on a transfer application under Section 24 CPC and at the same time by implication excludes an appeal against such an order by virtue of Section 105 CPC, therefore, the Division Bench opined that merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal, if any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by Section 105 C.P.C.”

Accordingly, the Court dismissed the appeal as not maintainable.

Case Title: Vinay Mohan v. Smt. Nidhi Singh and Anr. [SPECIAL APPEAL DEFECTIVE No. - 387 of 2025]

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