# Tarkeshwar Pandey v. Deena Nath Yadav & Anr

- **Citation:** (2025) 10 ILRA 1139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-06
- **Case number:** Second Appeal No. 723 of 2025
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarkeshwar-pandey-v-deena-nath-yadav-anr-52628
- **Pages:** 3

## Headnote

Whether a second appeal under Section 100
C.P.C. is maintainable against an order passed
in a miscellaneous appeal under Section 104(1)
read with Order XLIII Rule 1(r) C.P.C.

HEADNOTES
Civil Law - Code of Civil Procedure, 1908 -
Order XLIII Rule 1(r), Section - 2(2),
2(14), 100, 104(1), 104(2) : - Second
Appeal under section 100 of CPC - filed by the
plaintiff - against the District Judge's order,
passed in a Civil Appeal - which was arising
from rejection of plaintiff's injunction application
-
the
Stamp
Reporter
objected
to
its
maintainability, noting that the appeal was
against an order in a miscellaneous appeal -
Court held that, section 100 permits second
appeals only from decrees, not orders, and
Section 104(2) bars further appeals from orders
under Order XLIII Rule 1(r) - consequently, the
present
second
appeal
is
found
not
maintainable, and on appellant's request, same
is dismissed with liberty to pursue appropriate
remedy.
(Para - 8, 9, 10, 11, 12, 13)

Appeal Dismissed. (E-11)

CASE LAW CITED
No any case.

LIST OF ACTS
Code of Civil Procedure, 1908

LIST OF KEYWORDS
Second Appeal - Maintainability - Definition of
decree & Order - Miscellaneous Appeal -
Injunction Application - Section 100 C.P.C. -
Appeals from orders and bar of further appeals -
Order XLIII Rule 1(r) - Appeal against order
refusing injunction.

CASE ARISING FROM
Civil Appeal No. 123 of 2023 (District Judge,
Ballia) - Originating from rejection of injunction
application (Paper No. 6C2) dated 25.07.2023.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ram Brij Napit,
Counsel for Respondent(s): Shri Bhrigu Jee
Singh.

## Text

10 All. Tarkeshwar Pandey Vs. Deena Nath Yadav & Anr.
1139
this order is communicated to it, without giving
unnecessary adjournment to any party, on
merits, in accordance with law.

37. Interim order, if any, stands vacated.

38. Office is directed to send back the
original trial court record forthwith, if received.
--------
(2025) 10 ILRA 1139
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2025

BEFORE

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

Second Appeal No. 723 of 2025

Tarkeshwar Pandey ...Appellant
Versus
Deena Nath Yadav & Anr. ...Respondents

Counsel for the Appellant:
Indra Prakash, Ram Brij Napit

Counsel for the Respondents:
Bhrigu Jee Singh

ISSUE FOR CONSIDERATION
Whether a second appeal under Section 100
C.P.C. is maintainable against an order passed
in a miscellaneous appeal under Section 104(1)
read with Order XLIII Rule 1(r) C.P.C.

HEADNOTES
Civil Law - Code of Civil Procedure, 1908 -
Order XLIII Rule 1(r), Section - 2(2),
2(14), 100, 104(1), 104(2) : - Second
Appeal under section 100 of CPC - filed by the
plaintiff - against the District Judge's order,
passed in a Civil Appeal - which was arising
from rejection of plaintiff's injunction application
-
the
Stamp
Reporter
objected
to
its
maintainability, noting that the appeal was
against an order in a miscellaneous appeal -
Court held that, section 100 permits second
appeals only from decrees, not orders, and
Section 104(2) bars further appeals from orders
under Order XLIII Rule 1(r) - consequently, the
present
second
appeal
is
found
not
maintainable, and on appellant's request, same
is dismissed with liberty to pursue appropriate
remedy.
(Para - 8, 9, 10, 11, 12, 13)

Appeal Dismissed. (E-11)

CASE LAW CITED
No any case.

LIST OF ACTS
Code of Civil Procedure, 1908

LIST OF KEYWORDS
Second Appeal - Maintainability - Definition of
decree & Order - Miscellaneous Appeal -
Injunction Application - Section 100 C.P.C. -
Appeals from orders and bar of further appeals -
Order XLIII Rule 1(r) - Appeal against order
refusing injunction.

CASE ARISING FROM
Civil Appeal No. 123 of 2023 (District Judge,
Ballia) - Originating from rejection of injunction
application (Paper No. 6C2) dated 25.07.2023.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ram Brij Napit,
Counsel for Respondent(s): Shri Bhrigu Jee
Singh.

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Ram Brij Napit, learned
counsel for the appellant and Sri Bhrigu Jee
Singh, learned counsel appearing for the
respondent no.1.

2. This is a plaintiff's second appeal
under Section 100 of the Code of Civil
Procedure, 1908 (C.P.C.), directed against an
order dated 20.3.2025 passed by the District
Judge, Ballia in Civil Appeal No. 123 of 2023
[Tarkeshwar
Pandey
Vs.
Deenanath
and
Others]. The aforesaid Civil appeal had been
filed against an order dated 25.7.2023 whereby
the application bearing paper no.6C2 seeking
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
injunction filed by the appellant (the plaintiff in
the suit), had been rejected.
3. Stamp Reporter has submitted a
report stating that the instant appeal appears to
be not maintainable as it is filed against an
order passed in a miscellaneous appeal.

4. Counsel for the appellant has
sought to urge that since the order which
is sought to be challenged has been
passed by a Court exercising appellate
jurisdiction, the second appeal filed under
Section
100
C.P.C.
would
be
maintainable.

5. Counsel appearing for the
respondents
has
controverted
the
aforesaid submission by stating that an
appeal under Section 100 C.P.C. would
lie from a decree passed in an appeal, and
the said remedy would not be available
against an order passed in miscellaneous
appeal.

6.
Section
100
C.P.C.,
as
amended by Act No. 104 of 1976,
provides that an appeal shall lie to the
High Court from every decree passed in
appeal by any Court subordinate to the
High Court if the High Court is satisfied
that the case involves a substantial
question of law. Such appeal also lies
against an appellate decree passed ex
parte.
7. A 'decree' and an 'order' are
distinct concepts under the C.P.C. A
'decree' has been defined under Section
2(2)
C.P.C.
to
mean
the
formal
expression of an adjudication which, so
far as regards the Court expressing it
conclusively determines the rights of
parties with regard to all or any of the
matters in controversy in the suit and may
be either preliminary or final. An 'order'
under Section 2(14), means the formal
expression of any decision of a Civil
Court which is not a decree.

8. Order XLIII Rule (1) specifies
the orders which are appealable; these
appeals
are
preferred
under
Section
104(1) and once decided, Section 104(2)
closes the door to any further appeal. 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).

9.
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.

10. The language of Section 100
C.P.C. is explicit and it states that a
second appeal lies from a decree passed
in an appeal by any Court subordinate to
the High Court subject to the condition
that the High Court is satisfied that the
case involves a substantial question of
law.

11. An order passed under Order
XLIII Rule 1 C.P.C. is, by definition, not
a decree; therefore, a second appeal under
Section 100 would not be competent.

12. The order sought to be
challenged in the present case having
been passed in a miscellaneous civil
appeal under Section 104(1) read with
Order XLIII Rule 1(r), is not a decree;
therefore the second appeal would not be
maintainable.

13. Counsel for the appellant, at
this stage, submits that he may be
permitted to withdraw the appeal with
liberty to avail the appropriate legal
remedy.
14. The appeal is dismissed in
terms of the prayer so made.

15. Office to return the certified
copies of the orders to the counsel for the
10 All. Dr. Madhu Singh Chaudhary Vs. Dr. Atul Bharti
1141
appellant after retaining the photostat
copies of the same.
----------
(2025) 10 ILRA 1141
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.10.2025

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

First Appeal No. 130 of 2025

Dr. Madhu Singh Chaudhary ...Petitioner
Versus
Dr. Atul Bharti ...Respondent

Counsel for the Appellant:
Pratul Gupta, Ayush Gupta

Counsel for the Respondent:
Vivek Kumar Rai, Ajai Kumar

ISSUE FOR CONSIDERATION
Whether the Family Court erred in rejecting the
appellant's application under Order XIV Rules 15 CPC seeking framing of an additional issue
regarding alleged adultery of the respondent
husband with another lady, based on objections
filed by a third party.

HEADNOTES
Civil Law - Family Courts Act, 1984 -
Section 19(1) - Hindu Marriage Act, 1955
- Sections 9, 13 - Code of Civil Procedure,
1908 (CPC) - Order I Rule 10, Order VI
Rule 17, Order XIV Rules 1, 2, 3, 4, 5,
Section - 151 : - Appeal under Section 19(1)
of the Family Courts Act, - challenging the
judgment and order - whereby an application
under Order XIV Rules 1, 2, 3, 4, 5 read with
Section 151 C.P.C. was rejected - respondenthusband filed a divorce petition under Section
13 of the Hindu Marriage Act against the
appellant-wife - amendments application filed
by husband - Allowed - during which one
alleged person was impleaded as opposite party
no. 2 without permission under Order I Rule 10
C.P.C. - later deleted, but he was re-impleaded
on an application under Order I Rule 10 read
with Section 151 C.P.C. - issues of cruelty,
marital relationship, adultery, and entitlement to
divorce were framed by the court - and
evidence
were
recorded
-
Family
Court
dismissed the plea holding allegations baseless
as they were not part of pleadings, no counterclaim was filed, and no prejudice was caused -
relying on discretionary powers under Order XIV
C.P.C., the Court held that framing of additional
issues arises only when material propositions
are asserted and denied through pleadings,
which was absent - allegations of adultery
against a third party were not part of the
pleadings nor subject matter of the divorce
petition, and appellant-wife neither sought
divorce nor filed counter-claim - hence, family
Court rightly exercised discretion in rejecting the
application, impugned order affirmed, and
accordingly, the appeal stands dismissed.
(Para - 20, 21, 22, 23, 24, 25)
Appeal Dismissed. (E-11)

CASE LAW CITED
No any case.

LIST OF ACTS
Family Courts Act, 1984, - Hindu Marriage Act,
1955, - Code of Civil Procedure, 1908.

LIST OF KEYWORDS
Divorce Petition - Adultery Allegation - framing
of issues - Additional Issue - Impleadment of
Parties - Counter-Claim - Restitution of Conjugal
Rights - amendment of pleadings - Discretionary
Power of Court - Prejudice to Appellant -
Objections by Third Party - inherent powers.

CASE ARISING FROM
Divorce Petition No. H.M. 13 of 2016 filed by Dr.
Atul Bharti against Dr. Madhu Singh Chaudhary
before Family Court, Lucknow - Appeal filed
under Section 19(1) of the Family Courts Act,
1984 challenging the order dated 07.07.2025 of
the Additional Principal Judge, Family Court-8,
Lucknow

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Pratul Gupta.
Counsel for Respondent(s): Shri Vivek Kumar
Rai.