The Allahabad High Court has held that a Special Appeal filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, is not maintainable against an order passed by a Single Judge on a transfer application under Section 24 of the Code of Civil Procedure (CPC), 1908.
The Division Bench, comprising Justice Rajan Roy and Justice Prashant Kumar, observed that such an order does not qualify as a “judgment” within the meaning of the Rules and is further barred by the implications of Section 105 of the CPC.
Background of the Case
The ruling came in an appeal filed by one Vinay Mohan (Appellant in person) challenging the judgment and order dated 20.05.2025 passed by a learned Single Judge of the High Court in Transfer Application (Civil) No. 166 of 2022.
When the matter came up for hearing, a preliminary question arose regarding the maintainability of the appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. The provision allows for an appeal to the Court from a “judgment” (not being a judgment passed in the exercise of Appellate Jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court.
Arguments
The appellant, appearing in person, sought to address the Court on the merits of the matter. He relied upon several decisions to support the maintainability of his appeal, including:
- K.V. Balan and Anr. Vs. Sivagiri Sree Narayana Dharma Sanghom Trust and Ors. (AIR 2006 Kerala 58)
- Neelam Kanwar Vs. Devinder Singh Kanwar (2001 (1) ECrc 109)
- Krishna Veni Nagam Vs. Harish Nagam (AIR 2017 SC 1345)
- Shyam Sel and Power Limited and Anr. Vs. Shyam Steel Industries Ltd. (Supreme Court, decided on 14.03.2022)
- Amruta Vs. Sachin (Bombay High Court, decided on 01.08.2025)
The Court, however, found that none of the cited decisions assisted the appellant’s case in light of the specific legal position regarding Section 24 of the CPC and the High Court Rules.
Court’s Analysis
The Division Bench primarily examined whether an order passed under Section 24 CPC qualifies as a “judgment” under Chapter VIII, Rule 5 of the Allahabad High Court Rules.
Order Under Section 24 CPC is Not a Judgment
Referring to a coordinate Bench judgment in Amit Khanna Vs. Smt. Suchi Khanna (2009 (1) AWC 929), the Court reiterated that an order of transfer under Section 24 CPC is not a judgment. The Court observed:
“Such an order neither affects the merit of the controversy between the parties to the suit nor does it terminate or dispose of the suit on any ground. Therefore, an order of transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground.”
The Bench noted that such orders fall into the category of routine orders passed to facilitate the progress of the case or orders that may cause some inconvenience but do not finally determine the rights and obligations of the parties. The Court stated:
“Such an order is made only to facilitate the final decision but it in itself is not a decision at all to be called a judgment.”
Statutory Exclusion Under CPC
The Court further analyzed the maintainability of the appeal in light of Sections 104 and 105 of the CPC. It held that the right to appeal is not inherent unless specifically provided by statute.
The Bench concurred with the view in Amit Khanna that since the CPC does not specifically provide for an appeal against an order under Section 24, and Section 105 CPC provides that no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction except where expressly provided, the appeal was impliedly excluded.
The Court observed:
“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.”
Distinguishing Previous Judgments
The Court distinguished the Supreme Court’s decision in Subal Paul Vs. Malina Paul (2003), noting that it pertained to proceedings under the Indian Succession Act, 1925—a special enactment—whereas the present case involved an order under Section 24 of the CPC.
Similarly, the Court addressed the Division Bench judgment in Mahendra Pratap Bhatt Vs. Saroj Mahana (2016), clarifying that the appeal in that case was entertained because the impugned order was found to be “without jurisdiction” and essentially passed in the exercise of powers under Article 226 of the Constitution. The Court held that the ratio of Mahendra Pratap Bhatt did not apply to the present case as there was no issue of the Single Judge’s order being without jurisdiction.
Decision
The High Court dismissed the Special Appeal, ruling it as not maintainable on two counts: firstly, because an order under Section 24 CPC is not a “judgment” under the High Court Rules, and secondly, because such an appeal is barred by Section 105 of the CPC.
“Accordingly, the special appeal is dismissed as not maintainable.”
Case Details:
- Case Title: Vinay Mohan Vs. Smt. Nidhi Singh and Anr.
- Case Number: Special Appeal Defective No. 387 of 2025
- Bench: Justice Rajan Roy and Justice Prashant Kumar
