# Chandra Pal Singh & Ors v. Dhoom Singh & Anr

- **Citation:** (2025) 10 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-06
- **Case number:** First Appeal From Order No. 2119 of 2025
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-pal-singh-ors-v-dhoom-singh-anr-52703
- **Pages:** 4

## Headnote

order
itself
arises
from
a
miscellaneous civil appeal that is, an appellate
order passed u/s 104 read with O. XLIII Rule
1(r) in view of the statutory embargo contained
in s. 104(2) CPC, which prohibits any further
appeal from an order passed in appeal.

Headnotes
Code of Civil Procedure, 1908 - O. XLIII R.
1(r), s. 104 - The appellants - plaintiffs, in
Original Suit No. 125 of 2024, had secured
an order of temporary injunction upon
Application 6C2 from the Civil Judge
(Junior Division)-I, Hapur on 24.12.2024,
restraining the defendants - Aggrieved
10 All. Chandra Pal Singh & Ors. Vs. Dhoom Singh & Anr.
591
thereby, the defendants preferred Misc.
Civil Appeal No. 03 of 2025, wherein the
District Judge, Hapur, by order dated
15.07.2025, allowed the appeal and set
aside the injunction order - The plaintiffs,
treating the appellate reversal of the
injunction as prejudicial, instituted the
present First Appeal From Order under O.
XLIII R. 1(r) CPC, asserting that the
appellate interference with their interim
protection entitled them to a further
statutory appeal, whereas the Stamp
Reporter objected to maintainability on
the
ground
that
the
challenge
was
directed against an order passed in
appeal, attracting the bar u/s 104(2) CPC.

Held: A conjoint reading of the provisions make
it abundantly clear that an appeal would lie if
the order passed has been made expressly
appealable under the provisions contained in s.
104(1) read with O. XLIII R. 1, and that no
further appeal would be maintainable against
the decision in such appeal - Once an appellate
Court has exercised jurisdiction under O. XLIII
R. 1(r), the Code of Civil Procedure does not
provide a further appeal under the same rule -
The embargo against filing of a further appeal
u/s 104 read with O. XLIII R. 1, being
uncompromisingly absolute and strict in nature,
and providing for no exception, the instant
appeal which has been preferred against an
order in appeal filed under O. XLIII R. 1(r),
would not be maintainable - Accordingly, appeal
dismissed. [Paras 12, 17, 18] (E-13)

Case Law Cited
Nil...............................

List of Acts
Code of Civil Procedure, 1908

List of Keywords
Maintainability of Appeal / Appellate jurisdiction;
Order; Interim injunction; Temporary injunction;
Application 6C2; Original suit; Miscellaneous civil
appeal; O. XLIII R. 1(r); Order XXXIX Rules 1
and 2; s. 104 CPC; s. 105(1); s. 2(14); Absolute
embargo; Formal expression; Aggrieved party;
Interlocutory appellate orders; Remedy of
appeal; Expressly provided; Conjoint reading;
Appellate court; Jurisdiction

Case Arising From
APPELLATE JURISDICTION: First Appeal From
Order No. - 2119 of 2025
From the Order dated 15.7.2025 passed by the
District Judge, Hapur, in Misc. Civil Appeal No.
03 of 2025

Appearances for Parties
Advs. for the Appellants:
Aanya Verma, Alok Saxena
Adv. for the Respondents:

## Text

590 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was a labourer as presumed by
the High Court."
(emphasis supplied)

7. From the law laid down by the
Apex Court in the case of Gurpreet Kaur
(supra) it is evident that if the deceased was
enjoying a particular lifestyle and incurring
recurring expenditure, which was proved
by the claimants, the Tribunal can assess
his income on the basis of the expenditure
incurred by him. In the instant case, the
claimants proved before the Tribunal that
the deceased was the owner of the loader,
which was purchased on loan, and the
deceased was paying a regular EMI of Rs.
18,250/- per month towards repayment of
loan. The Tribunal has considered this
aspect and further concluded that, since
there were five dependents of the deceased,
he must have been earning at least an
additional amount of Rs. 7,000/- per month
to sustain his family.

8. Accordingly, the Tribunal has
assessed the total income of the deceased as
Rs. 18,250 + Rs. 7,000 = Rs. 25,250/- per
month, which cannot be said to be
erroneous or perverse, in the facts and
circumstances of the case.

9. It is to be noted that under Rule
220-A of the U.P. Motor Vehicle Rules,
1998, the claimants were entitled to future
prospects at the rate of 50%, as he was
below 40 years of age on the date of the
accident;
however,
the
Tribunal
has
awarded future prospects only at the rate of
40%.

10. In view of the above, the amount
of compensation awarded by the Tribunal
cannot be reduced.

11. Accordingly, this appeal has got
no merit and is liable to be dismissed at the
admission stage.

12. The appeal is dismissed at the
admission stage.

13. The impugned judgment and
award of the Tribunal is affirmed.

14. Office is directed to remit back the
statutory deposit made by the Insurance
Company to the Tribunal concerned,
forthwith.
----------
(2025) 10 ILRA 590
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2025

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 2119 of 2025

Chandra Pal Singh & Ors. ...Appellants
Versus
Dhoom Singh & Anr. ...Respondents

Counsel for the Appellant:
Aanya Verma, Alok Saxena

Counsel for the Respondent:

Issue for Consideration
Matter pertains to whether an appeal filed under
O. XLIII R. 1(r) CPC is maintainable when the
impugned
order
itself
arises
from
a
miscellaneous civil appeal that is, an appellate
order passed u/s 104 read with O. XLIII Rule
1(r) in view of the statutory embargo contained
in s. 104(2) CPC, which prohibits any further
appeal from an order passed in appeal.

Headnotes
Code of Civil Procedure, 1908 - O. XLIII R.
1(r), s. 104 - The appellants - plaintiffs, in
Original Suit No. 125 of 2024, had secured
an order of temporary injunction upon
Application 6C2 from the Civil Judge
(Junior Division)-I, Hapur on 24.12.2024,
restraining the defendants - Aggrieved
10 All. Chandra Pal Singh & Ors. Vs. Dhoom Singh & Anr.
591
thereby, the defendants preferred Misc.
Civil Appeal No. 03 of 2025, wherein the
District Judge, Hapur, by order dated
15.07.2025, allowed the appeal and set
aside the injunction order - The plaintiffs,
treating the appellate reversal of the
injunction as prejudicial, instituted the
present First Appeal From Order under O.
XLIII R. 1(r) CPC, asserting that the
appellate interference with their interim
protection entitled them to a further
statutory appeal, whereas the Stamp
Reporter objected to maintainability on
the
ground
that
the
challenge
was
directed against an order passed in
appeal, attracting the bar u/s 104(2) CPC.

Held: A conjoint reading of the provisions make
it abundantly clear that an appeal would lie if
the order passed has been made expressly
appealable under the provisions contained in s.
104(1) read with O. XLIII R. 1, and that no
further appeal would be maintainable against
the decision in such appeal - Once an appellate
Court has exercised jurisdiction under O. XLIII
R. 1(r), the Code of Civil Procedure does not
provide a further appeal under the same rule -
The embargo against filing of a further appeal
u/s 104 read with O. XLIII R. 1, being
uncompromisingly absolute and strict in nature,
and providing for no exception, the instant
appeal which has been preferred against an
order in appeal filed under O. XLIII R. 1(r),
would not be maintainable - Accordingly, appeal
dismissed. [Paras 12, 17, 18] (E-13)

Case Law Cited
Nil...............................

List of Acts
Code of Civil Procedure, 1908

List of Keywords
Maintainability of Appeal / Appellate jurisdiction;
Order; Interim injunction; Temporary injunction;
Application 6C2; Original suit; Miscellaneous civil
appeal; O. XLIII R. 1(r); Order XXXIX Rules 1
and 2; s. 104 CPC; s. 105(1); s. 2(14); Absolute
embargo; Formal expression; Aggrieved party;
Interlocutory appellate orders; Remedy of
appeal; Expressly provided; Conjoint reading;
Appellate court; Jurisdiction

Case Arising From
APPELLATE JURISDICTION: First Appeal From
Order No. - 2119 of 2025
From the Order dated 15.7.2025 passed by the
District Judge, Hapur, in Misc. Civil Appeal No.
03 of 2025

Appearances for Parties
Advs. for the Appellants:
Aanya Verma, Alok Saxena
Adv. for the Respondents:
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Alok Saxena, along with
Ms. Aanya Verma, learned counsel for the
appellants.

2. The instant appeal filed by the
appellants-plaintiffs under Order XLIII
Rule 1(r) of the Code of Civil Procedure,
1908 (C.P.C.), is directed against an order
dated 15.7.2025 passed by the District
Judge, Hapur, in Misc. Civil Appeal No. 03
of 2025 [Dhoom Singh and Another Vs.
Chandra Pal Singh and Others], whereby
the appeal has been allowed and the earlier
order dated 24.12.2024 passed by the Civil
Judge (Junior Division)-I, Hapur allowing
the Application 6C2, filed in Original Suit
No. 125 of 2024, has been set aside.

3. Stamp Reporter has submitted a
report stating that the instant appeal
appears to be not maintainable as it has
been filed against an order passed in a
miscellaneous appeal.

4.
Counsel
appearing
for
the
appellants has sought to contend that the
miscellaneous
appeal
filed
by
the
defendants having been allowed and the
interim injunction order granted upon
Application
6C2
filed
by
the
appellants/plaintiffs in the original suit,
having been set aside, the plaintiffs
(appellants herein) would be entitled to
592 INDIAN LAW REPORTS ALLAHABAD SERIES
maintain the present appeal against the
order passed in the miscellaneous appeal.

5.
For
consideration
of
the
maintainability of the present appeal, the
provisions of Section 104 of the C.P.C.
would be relevant, and the same are being
reproduced as under:

"104. Orders from which appeal
lies.-(1) An appeal shall lie from the
following orders, and save as otherwise
expressly provided in the body of this Code
or by any law for the time being in force,
from no other orders:-

(a) [* * *]

(b) [* * *]

(c) [* * *]

(d) [* * *]

(e) [* * *]

(f) [* * *]

(ff) an order under Section 35-A;

(ffa) an order under Section 91 or
Section 92 refusing leave to institute a suit
of the nature referred to in Section 91 or
Section 92, as the case may be;

(g) an order under Section 95;

(h) an order under any of the
provisions of this Code imposing a fine or
directing the arrest or detention in the civil
prison of any person except where such
arrest or detention is in execution of a
decree;

(i) any order made under rules
from which an appeal is expressly allowed
by rules:

Provided that no appeal shall lie
against any order specified in clause (ff)
save on the ground that no order, or an
order for the payment of a less amount,
ought to have been made.

(2) No appeal shall lie from any
order passed in appeal under this section."

6. Section 104(1) C.P.C. provides that
an appeal shall lie from the orders specified
in the said sub-section, and it further
provides that save as otherwise expressly
provided in the body of the Code, or by any
law for the time being in force, no appeal
shall lie against any other order.

7. Section 104(1)(i) provides for filing
of an appeal against any order made under
rules from which an appeal is expressly
allowed by rules.

8. The expression 'order' has been
defined under Section 2(14) as meaning the
formal expression of any decision of the
Civil Court which is not a decree.

9. Order XLIII Rule 1 specifies the
orders against which an appeal shall lie
under the provisions of Section 104. An
order granting or refusing a temporary
injunction under Order XXXIX Rules 1
and 2 is an appealable order under Order
XLIII Rule 1(r).

10. Any party aggrieved by an order of
the trial Court upon an application for
temporary injunction, would have the
remedy of filing a 'miscellaneous civil
appeal' or an 'appeal from order' under
Section 104 read with Order XLIII Rule
1(r).

11. Section 104(2) specifically states
that no appeal shall lie from any order
passed in appeal under the said section.
Section 105(1) reiterates by laying down
that save as otherwise expressly provided,
no appeal shall lie from any order made by
a Court in exercise of its original or
appellate jurisdiction.

12. A conjoint reading of the aforesaid
provisions make it abundantly clear that an
10 All. Mahesh Kumar & Ors. Vs. Omaira Buildcon Proprietor Lalit Gogia
593
appeal would lie if the order passed has
been made expressly appealable under the
provisions contained in Section 104(1) read
with Order XLIII Rule 1, and that no
further appeal would be maintainable
against the decision in such appeal.

13. The embargo under Section 104(2)
is absolute and contains a clear interdict
against any further appeal from an order
passed in an appeal under Section 104.

14. The remedy of an appeal provided
under Section 104(1) is only in respect of
the orders specified therein and those as
referred to under Order XLIII Rule 1. The
orders which have been made appealable
under Section 104(1) have either been
specified therein or have been enlisted
under Rule 1 of Order XLIII. The language
of sub-section (1) of Section 104 provides
for an absolute embargo against the remedy
of appeal being available from any other
order.

15. The appealable orders having been
expressly provided, the remedy of appeal
under Section 104, cannot be understood to
extend by implication to interlocutory
appellate orders.

16. Section 104(2) unambiguously
states that no appeal shall lie from any
order passed in appeal under the said
section. The ambit and scope of an appeal
under
Section
104
is
thus
clearly
circumscribed and the only interpretation
possible is that an appeal would not lie
against orders passed in appeals filed under
Section 104 or Order XLIII C.P.C.

17. It may therefore be stated that once
an
appellate
Court
has
exercised
jurisdiction under Order XLIII Rule 1(r),
the Code of Civil Procedure does not
provide a further appeal under the same
rule.

18. The embargo against filing of a
further appeal under Section 104 read with
Order
XLIII
Rule
1,
being
uncompromisingly absolute and strict in
nature, and providing for no exception, the
instant appeal which has been preferred
against an order in appeal filed under Order
XLIII
Rule
1(r),
would
not
be
maintainable.

19. Counsel for the appellants, at this
stage, submits that he may be permitted to
withdraw the appeal with liberty to avail
the appropriate legal remedy.

20. The appeal is dismissed in terms of
the prayer so made.

21. Office to return the certified copies
of the orders to the counsel for the
appellants after retaining photostat copies
thereof.
----------
(2025) 10 ILRA 593
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal From Order No. 2422 of 2025

Mahesh Kumar & Ors. ...Appellants
Versus
Omaira Buildcon Proprietor Lalit Gogia
...Respondent

Counsel for the Appellant:
Aishwarya Pratap Shahi, Nipun Singh

Counsel for the Respondent:
Krishna Mohan Garg
Issue for Consideration