# Vinay Mohan v. Smt. Nidhi Singh & Anr

- **Citation:** (2025) 12 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-11
- **Case number:** Special Appeal Defective No. 387 of 2025
- **Bench:** Rajan Roy, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-mohan-v-smt-nidhi-singh-anr-52941
- **Pages:** 5

## Text

12 All. Vinay Mohan Vs. Smt. Nidhi Singh & Anr.
489

30. Office to send copy of this
judgment to the trial Court. The trial Court
records be transmitted.
----------
(2025) 12 ILRA 489
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.12.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal Defective No. 387 of 2025

Vinay Mohan ...Appellant
Versus
Smt. Nidhi Singh & Anr. ...Respondents

Issue for Consideration
(1) Maintainability of Special Appeal against the
Judgment an order passed by Single Judge in an
application u/s 24 CPC.
(2) Definition of word 'Judgment' used in Rule 5
of Chapter VIII of the Allahabad High Court
Rules, 1952.
(3) Effect of exclusory provision of S. 105 CPC
on the maintainability of appeal.

Headnotes
(A) Practice and procedure - Special
Appeal - Maintainability - Impugned
order was passed in a petition arising out
of proceeding u/s 24 CPC - Against which
Special Appeal was filed - Preliminary
objection on its maintainability was raised
-
Question
of
scope
of
the
word
'Judgment' used in Ch. VIII Rule 5 also
felt into consideration. (E-1)
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.
[Para 5]
Further held : Right to appeal is not inherent
unless it is specifically provided by the statute.
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.
[Para 6]

Case Law Cited
Amit Khanna vs. Smt. Suchi Khanna, 2009 (1)
AWC 929; Asrumati Debi vs. Kumar Rupendra
Deb Raikot, AIR 1953 SC 198; Midnapore
Peoples' Coop. Bank Ltd. and Ors. vs. Chunilal
Nanda and Ors., (2006) 5 SCC 399; South Asia
Industries (P) Ltd. vs. S.B. Sarup Singh and
Ors., AIR 1965 SC 1442; Special Appeal No.
1126 of 2018; Akshay Gupta vs. Smt. Swati
Gupta decided on 16.11.2018; Mahendra Pratap
Bhatt vs. Saroj Mahana, 2016 (5) ADJ 282;
Subal Paul Vs. Malina Paul and Anr., 2003 (5) JT
193; K.VS. 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.
decided
on
14.03.2022 (Supreme Court); Amruta Vs. Sachin
decided on 01.08.2025 (Bombay High Court) -
referred to.

List of Acts
Allahabad High Court Rules, 1952 - Chapter
VIII, Rules 5; Code of Civil Procedure, 1908 -
Ss. 24, 104 and 105.

List of Keywords
Transfer
Application;
Special
Appeal;
Maintainability; Original jurisdiction; Appellate
jurisdiction; Revisional jurisdiction; Later Patent
Appeal;
Judgment;
Appropriate
legislation;
Irregularity; Right to appeal; Inherent.

Case Arising From
Judgment and order dated 20.05.2025 passed
by Hon'ble Single Judge in Transfer Application
(Civil) No. 166 of 2022.

Appearances for Parties
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellant-in-person
Advs. for the Respondents : Vikas Pandey,
Advocate

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Vinay Mohan -appellant
in person and Shri Vikas Pandey, learned
counsel appearing for the respondent no. 1.

2. This is an appeal under Chapter
VIII, Rules 5 of the Allahabad High Court
Rules, 1952 challenging a judgment and
order dated 20.05.2025 passed by learned
Single Judge of this Court in Transfer
Application (Civil) No. 166 of 2022.

3. Though, the appellant appearing in
person sought to address the Court on
merits of the matter, but, first and foremost
the question arose as to whether this appeal
against the order impugned is maintainable
under Chapter VIII, Rules 5 of the
Allahabad High Court Rules, 1952 or not ?
The aforesaid provision reads as under:-

"5. Special appeal.- An appeal
shall lie 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 and not
being an order made in the exercise of
revisional jurisdiction or in the exercise of
its power of Superintendence or in the
exercise of criminal jurisdiction or in the
exercise of jurisdiction conferred by Article
226 or Article 227 of the Constitution in
respect of any judgment, order or award
(a) of a tribunal, Court or statutory
arbitrator made or purported to be made in
the exercise or purported exercise of
jurisdiction under any Uttar Pradesh Act
or under any Central Act, with respect to
any of the matters enumerated in the State
List or the Concurrent List in the Seventh
Schedule to the Constitution, or (b) of the
Government or any officer or authority,
made or purported to be made in the
exercise or purported exercise of Appellate
or Revisional jurisdiction under any such
Act of one Judge."

4. It is true that the order has been
passed on an application under Section 24
of the Code of Civil Procedure, 1908 which
is not in exercise of any appellate or
revisional
jurisdiction
but
under
the
jurisdiction vested in the High Court under
Section 24 of the CPC. First and foremost it
has been held in a catena of decisions that
such an order passed under Section 24 CPC
is not a judgment within the meaning of the
term as used in Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952 and
similar provisions contained in Letter
Patent Appeal Rules etc. pertaining to other
High Courts. We may in this context refer
to a co-ordinate Bench judgment rendered
in the case of Amit Khanna Vs. Smt.
Suchi Khanna reported in 2009 (1) AWC
929, wherein this issue was considered at
length and referring to various decisions
including the judgment of Hon'ble the
Supreme Court reported in AIR 1953 SC
198;Asrumati Debi v. Kumar Rupendra
Deb Raikot it was opined that an order of
transfer under Section 24 is not a judgment
within the meaning of Clause 15 of Letters
Patent (Culcutta) and, therefore, is not
appealable under the said provision. 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. In this context the Division Bench
also considered the Supreme Court decision
12 All. Vinay Mohan Vs. Smt. Nidhi Singh & Anr.
491
reported in (2006) 5 SCC 399; Midnapore
Peoples' Coop. Bank Ltd. and Ors. Vs.
Chunilal Nanda and Ors. and the
decisions cited therein. The Division Bench
ultimately opined that an order passed by
the learned Single Judge of this Court on a
transfer application falls in the category 4
or
5
(Para
11)
as
categorized
in
Midnapore's
case
(supra),
meaning
thereby, it was either a routine order which
was passed to facilitate the progress of the
case till its culmination in the final
judgment or it was an order which may
cause
some
inconvenience
or
some
prejudice to a party, but which do not
finally determine the rights and obligations
of the parties. 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.

5. In view of this, as, 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.

6. This apart, there is another aspect of
the matter. Such an appeal is maintainable
under the aforesaid provision only if it has
not been expressly or impliedly taken away
by appropriate legislation. The Division
Bench in Amit Khanna's case (supra)
relied upon a constitution Bench judgment
of the Supreme Court rendered in the case
of South Asia Industries (P) Ltd. Vs. S.B.
Sarup Singh and Ors. reported in AIR
1965 SC 1442 in this regard. Based on the
discussion, it opined that an appeal against
an order passed under Section 24 CPC is
not prescribed under Section 104 CPC and
it is specifically excluded by Section 105
CPC, according to which -"Save as
otherwise expressly provided, no appeal
shall lie from any Order made by a Court in
the exercise of its original or appellate
jurisdiction; but, where a decree is appealed
from, any error, defect or irregularity in any
order, affecting the decision of the case,
may be set forth as a ground of objection in
the memorandum of appeal." Thus, 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. 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.
The Division Bench in Amit Khanna
(supra), thus, opined that in the above
scenario the right of special appeal as
contemplated by Rule 5 Chapter VIII of the
Rules of the Court, even though the same is
independent to the provisions of C.P.C.,
against the order of the single judge passed
on a transfer application under Section 24
C.P.C. stands impliedly excluded.

7. The Division Bench in Amit
Khanna (supra) was followed by another
Division Bench in Special Appeal No.
1126 of 2018; Akshay Gupta Vs. Smt.
Swati Gupta decided on 16.11.2018. In
this very context we may refer another
492 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment, also by a Division Bench of this
Court, rendered in the case of Mahendra
Pratap Bhatt Vs. Saroj Mahana reported
in 2016 (5) ADJ 282, wherein, after
considering the Division Bench judgment
in Amit Khanna's case (supra) and certain
other decisions, especially, the Supreme
Court decision rendered in the case of
Subal Paul Vs. Malina Paul and Anr.
reported in 2003 (5) JT 193, it was opined
that in Amit Khanna (supra) the aforesaid
decision in Subal Paul (supra) as regards
the purport and application of Section 104
C.P.C. was not considered and ultimately
the Division Bench opined that irrespective
of the Division Bench judgment in Amit
Khanna's case (supra), as, the case before it
was one where the order impugned was
without jurisdiction which was not the case
in Amit Khanna (supra), and as it was of
the opinion that essentially the impugned
judgment was one passed in exercise of
powers
under
Article
226
of
the
Constitution
of
India,
therefore,
it
entertained the appeal. We are of the
opinion that the said judgment turns on its
own facts. In the case at hand, it is not, as,
if the judgment impugned is without
jurisdiction,
therefore,
the
judgment
rendered in Mahendra Pratap Bhatt
(supra) does not apply in this appeal,
instead, the judgments rendered in Amit
Khanna (supra) and Akshay Gupta
(supra) apply. In the case of Akshay
Gupta (supra) not only the judgment in
Amit Khanna (supra) but also Mahendra
Pratap Bhatt (supra) have also been
considered and it was opined that from a
joint reading of the judgments in the said
cases it would be evident that special
appeal under Chapter VIII Rule 5 of the
Rules, 1952 against an order passed by
learned Single Judge on an application filed
under Section 24 C.P.C. would not be
maintainable except where the order passed
by the learned Single Judge is without
jurisdiction, which is not case in this appeal
before us.

8. We are, therefore, of the considered
opinion that on both the grounds, firstly
that an order passed under Section 24
C.P.C. is not a judgment so as to maintain
an appeal against such an order under
Chapter VIII Rule 5 of the Rules, 1952,
secondly, such an appeal is barred by
Section 105 C.P.C., therefore, holding that
this appeal is maintainable will be contrary
to the letter and intent of Section 104 read
with Section 105 C.P.C. as held by the
Division Bench in the case of Amit
Khanna (supra) with which we concur.

9. As regards the Supreme Court
decision in Subal Paul (supra) that was a
case where special appeal arose out of
proceedings under Section 299 of the
Indian Succession Act, 1925 and Hon'ble
the Supreme Court has held that the rigor
of Section 104 C.P.C. would not apply to
the said proceedings because the appeal
was prescribed under special enactment and
not the C.P.C. In the case at hand the
factual position is different, as, the order
which has been impugned, has been passed
under Section 24 C.P.C. and not under any
special enactment, therefore, the decision in
Subal Paul (supra) also does not help the
appellant herein.

10. The appellant has relied upon the
decision reported in AIR 2006 Kerala 58;
K.V. Balan and Anr. Vs. Sivagiri Sree
Narayana Dharma Sanghom Trust and
Ors., 2001 (1) ECrc 109; Neelam
Kanwar Vs. Devinder Singh Kanwar,
AIR 2017 SC 1345; Krishna Veni Nagam
Vs. Harish Nagam and other judgment
rendered by Hon'ble the Supreme Court in
the case of Shyam Sel and Power Limited
12 All. Shubham Bhargava Vs. Union of India & Ors.
493
and Anr. Vs. Shyam Steel Industries
Ltd. decided on 14.03.2022 and judgment
of Bombay High Court rendered in the
case of Amruta Vs. Sachin decided on
01.08.2025. None of the decisions cited
by the appellant appearing in person help
his case in view of the above discussion.

11. For all these reasons, we are of the
opinion that the special appeal is not
maintainable.

12. Accordingly, the special appeal is
dismissed as not maintainable.
----------
(2025) 12 ILRA 493
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 13255 of 2025

Shubham Bhargava ...Petitioner
Versus
Union of India & Ors. ...Respondents

Issue(s) for consideration
 Whether the request of the petitioner for
cancellation of his transfer in terms and
conditions as provided in the transfer policy of
the Bank, can be rejected by the Bank on the
ground of special services being rendered by the
petitioner?

Headnotes
A. Service Law - Specialization of an
employee should not be used as a tool
against him, as a specialist can well
render his services with cool and calm
state of mind and if he is being
transferred from one place to another,
in an unpleasant situation, perhaps
his/her skill being specialist; would
have of no avail; for the Bank or any of
the Institution. (Para 16)
The petitioner being Law Manager,
renders special services, in term of
clause of the transfer policy of the
Bank.
He
has
been
transferred
frequently,
which
is
against
the
transfer
policy.
The
authorities
undoubtedly have to look into the interest
of the Bank/Institution but at the same
time, it has also to be considered that if the
employees of the Bank or any Institution
are given conducive atmosphere of working,
the same may enhance the productivity of
such Institution, as the employees are
ultimately the human beings. This principle
cannot be a strait-jacket formula but the
same shall be applicable in the peculiar
facts and circumstances of each and every
case. (Para 16)

B. Clause 1.3 of the transfer policy
provides that normal tenure of the
officer at one place of the posting will
be three years of active service and
further clause 1.07 also provides that
the Bank shall make all endeavour to
complete the transfer exercise by 30th
June of every year and the mid session
transfer shall be considered only in
case of promotion and administrative
exigencies. When this Court examines the
whole scenario of the transfer of the
petitioner as well as the transfer policy, it is
apparent that post of the petitioner is
transferable as per Regulations 1979 and
for putting unanimity, the Bank itself has
issued an exhaustive transfer policy. The
petitioner, who served more than nine
years outside the State, while working at
Nagpur and Jabalpur, was transferred in
the State of Uttar Pradesh and was
posted at Zonal Office Kanpur in the year
2023 and in between two years, he has
been
transferred
from
Kanpur
to
Bahraich and again from Bahraich to
Salem in Tamil Nadu, in the month of
July 2025. Normal tenure, which is
provided for posting at one place, is
three years of active service, whereas
the petitioner within two years has been
transferred two times and that too, lastly
about 2000 kms away, in the mid term.
(Para 14, 15)