Orissa High Court
Paradeep Phosphates Limited vs Chandramani Dei @ Sahoo And on 17 April, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A.O. No. 7 of 2024
Paradeep Phosphates Limited, .... Appellant
Bhubaneswar
-Versus-
Chandramani Dei @ Sahoo and .... Respondents
others
Advocates appeared in this case:
For Appellant : Mr. Susanta Kumar Dash, Sr. Advocate
assisted by Mr. P. Das, Advocate
For Respondents : None (Respondent No.1)
: Additional Government Advocate
(Proforma Respondent Nos. 2 and 3)
CORAM:
HON'BLE THE CHIEF JUSTICE
JUDGMENT
----------------------------------------------------------------------------------
Date of Judgment : 17th April, 2026
---------------------------------------------------------------------------------- HARISH TANDON, CJ.
1. It is noticed that frequent Second Appeals against the order are filed by the aggrieved persons assailing the order passed by the Appellate Court which are interlocutory in nature. The question SAO No. 7 of 2024 Page 1 of 24 was posed to the counsel appearing for the appellant as to whether the Second Appeal against an interlocutory order passed by the Appellate Court is maintainable under Section 104 read with Order XLIII, Rule 1 of the Code of Civil Procedure. The argument is advanced by the counsel for the appellant that if the order passed by the Appellate Court comes within the peripheral of Order XLIII, Rule 1 of the Code, containing an exhaustive provision in relation to an appeal against specified categories of the order, no fetter can be put in maintaining the appeal if the order passed by the Appellate Court comes within the ambit thereof. Such being the legal question involved in the instant appeal, this Court feels it prudent to decide the same, in order to put an end to such issue and to ensure the uniformity and clarity in this regard.
2. Before this Court proceeds to determine the said point, the undisputed fact emanating from the record needs succinct adumbration.
3. An application under Order XXXIX, Rule-1 and 2 of the Code of Civil Procedure was filed in a suit and moved for passing an ex parte ad interim order of injunction. The appeal was filed before the appellate forum under Section 104 read with Order SAO No. 7 of 2024 Page 2 of 24 XLIII, Rule 1 (r) of the Code of Civil Procedure, which was eventually allowed passing an interim order directing the parties to maintain status quo in respect of the suit land till the disposal of the suit. Since the said appeal was disposed of ex parte, an application under Order XLI, Rule 21 of the Code of Civil Procedure was filed for re-hearing of the appeal, which ultimately stood dismissed by the Appellate Court. The appellant filed the instant Second Appeal against the order before this Court having an impression that refusal to re-hear the appeal is appealable under Order XLIII, Rule 1 (t) of the Code of Civil Procedure and contended that there is no fetter in maintaining the said appeal.
4. Such being the undisputed fact germane from the record, this Court proceeds to decide such point as narrated hereinabove on the applicability of several provisions of the Code of Civil Procedure, which have some bearing on the said issue.
5. Section 104 of the Code of Civil Procedure provides substantive right of an appeal against the category of the orders mentioned therein, which without any hesitation, includes any order made under rules from which an appeal is expressly allowed by rules. Section 104 of the Code is quoted as under: SAO No. 7 of 2024 Page 3 of 24
"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:--
(ff) an order under section 35A;
(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. The language employed under Section 104 leaves no ambiguity in understanding and/or its applicability, that, apart from a decree, certain categories of the orders are also amenable to appeal and further engulfed within its folds such categories of the orders which are appealable under the relevant rules. By virtue SAO No. 7 of 2024 Page 4 of 24 thereof, the specified categories of the orders provided under XLIII, Rule-1 of the Code of Civil Procedure makes such category of the orders appealable one. Simultaneously, this Court cannot overlook sub-Section 2 of Section 104 of the Code of Civil Procedure creating an absolute embargo in maintaining a further appeal from any order passed in an appeal under this Section. Thus, it raises a question as to whether a further appeal would lie as provided under Order XLIII, Rule-1 (t) of the Code of Civil Procedure passed in an appeal under Section 104 of the Code of Civil Procedure and the embargo created under sub-Section 2 gets obliterated and superseded by the procedural part of the Code of Civil Procedure.
7. To bring completeness in this regard, the other provisions of the Code of Civil Procedure are also required to be looked into, which in my opinion would have some remote nexus.
8. Section 105 of the Code of Civil Procedure creates a fetter by incorporating negative language in maintaining an appeal against any order made by the Court in exercise of its original or appellate jurisdiction, but such fetter would not apply in the event an appeal is filed against a decree where any order affecting the SAO No. 7 of 2024 Page 5 of 24 decision of the case may be set forth as a ground of objection in the memorandum of appeal. The said Section 105 is adumbrated as under:
"105. Other orders.--(1) 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.
(2) Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order of remand from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
9. Section 107 of the Code enumerated the powers of the Appellate Court and includes the power which can be exercised in the same manner as nearly as conferred by the Court on the Courts of Original Jurisdiction in respect of the suit instituted therein in the following:
"107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;SAO No. 7 of 2024 Page 6 of 24
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
10. It takes me to another provision contained under Section 141 of the Code providing the applicability of the procedure provided in the Code in regard to suits to be followed as far as practicable in all proceedings in any Court of Civil Jurisdiction in the following:
"141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. 2 [Explanation.-- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]"
11. Order XLIII, Rule 1 of the Code of Civil Procedure contains several categories of the orders, which in the wisdom of the legislatures are amenable to be challenged in an appeal by virtue of the provisions contained under Section 104 of the Code. SAO No. 7 of 2024 Page 7 of 24 It would be apposite to recapitulate the said provisions, which runs thus:
"ORDER XLIII APPEALS FROM ORDERS
1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely: --
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; SAO No. 7 of 2024 Page 8 of 24
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(w) an order under rule 4 of Order XLVII granting an application for review."
12. This Court feels prudent to harmonize the applicability of the aforementioned provisions in order to ascertain as to whether the remedy by way of an appeal exists to an aggrieved person against an interlocutory order passed in the appeal taking aid of SAO No. 7 of 2024 Page 9 of 24 Order XLIII, Rule 1 (t) of the Code in total disregard to the bar having been imposed under sub-Section 2 of Section 104 of the Code. It admits no ambiguity that the appeal is a statutory right; unless provided in the statute, it can neither be presumed nor by necessary implication. The language employed in Section 104 of the Code can be dissected into two compartments, one in relation to conformant of right to appeal and the other debarment from an appeal. It postulates that an appeal shall lie from the categories of the orders as provided in the body of the Code or any law for the time being in force with the negative words that no appeal would lie which does not come within its fold. The word "an appeal"
ordinarily in its general sense connotes a singular appeal, which would get further strengthened by incorporation of sub-Section 2 thereof creating an absolute embargo of a further appeal from any order passed in an appeal under the said section. The expression "any order passed in appeal" can be reasonably construed as any category of the order, be it interlocutory or otherwise final as not appealable by way of further appeal. It leads to inescapable conclusion that it forecloses the further right of an appeal from any order passed in an appeal filed under Section 105 of the Code of Civil Procedure.SAO No. 7 of 2024 Page 10 of 24
13. This Court is reminded of a Division Bench decision of the Calcutta High Court rendered in Mira Chatterjee and others v. Joydeb Chatterje reported in AIR 2007 CALCUTTA 258, where an application for injunction under Order XXXIX Rule 1 and 2 of the Code was filed in a regular First Appeal and an Appeal under Section 104 was filed against an order passed on the said application and plea was taken whether such appeal is maintainable under Section 104 read with Order XLIII Rule 1 (r) of the Code of Civil Procedure. An argument was sought to be advanced that by virtue of Section 141 of the Code of Civil Procedure, all the procedures provided in the Code with regard to the suit shall be followed as far as applicable in a proceeding in any Court of Civil Jurisdiction. The reference was made to the explanation appended thereto defining the expression "proceedings" to include a proceeding under Order IX and not any proceeding under Article 226 of the Constitution of India. It was sought to be contended that by virtue of the said provision, not only the procedure, but a substantive right conferred under the Code is also applicable. The Division Bench answered the same in negative and hold that the said Section does not confer an inchoate SAO No. 7 of 2024 Page 11 of 24 right, which is substantive in nature, but only extend the procedural parts to apply in the following:-
"9. It is now settled law that by taking support of Section 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of Section 141 of the Code (See Navab Usmanali Khan v. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801 (paragraph 7).)
10. Therefore, although the provisions contained in Order XXXIX, Rules 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under Section 104 of the Code is not available to an aggrieved person by taking help of Section 141 of the Code (See in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa v. Rabindra Nath Deb, reported in 1988 (1) CHN 461 (AIR 1988 Cal 358).
11. We are also not impressed by the submission of the learned counsel for the appellant that an appeal being really the continuation of a suit, an order passed on an application under Order XXXIX, Rules 1 and 2 of the Code in an appeal would come within the purview of Order XLIII, Rule 1(r) of the same. In our opinion, an appeal may be treated as a continuation of the "lis" between the parties but should never be treated as the continuation of the suit within the scheme of the Code. According to the design provided in the Code, a suit commences with the presentation of a plaint and culminates either in a decree or in rejection of the plaint, however, if the trial Court returns a plaint for want of jurisdiction, the suit will come to an end, the moment the plaint is so returned and the suit will revive from the date of SAO No. 7 of 2024 Page 12 of 24 representation before the Court having jurisdiction and all interim orders passed earlier will have no further effect. If the intention of the legislature were to treat the appeal as the continuation of the suit, it would not separately specify the power of the appellate Court in Section 107 or a different procedure for appeal in Order XLI of the Code.
12. We, therefore, find that this First Miscellaneous Appeal is not maintainable as the order impugned does not come within the purview of Order XLIII, Rule 1(r) of the Code because the same is attracted only when an order under Order XXXIX, Rule 1. 2, 2A, 4 or 10 is passed in a suit, and, accordingly, we dismiss this appeal on that ground alone."
14. The ratio of law laid down in the above report clearly indicate that the provisions contained under Section 141 recognizes the applicability of the procedural part of the Code and does not deal with the substantive right emanating therefrom, which would be guided by the other provisions contained in the Code.
15. The scheme of the Code of Civil Procedure can be envisaged from its preamble aiming to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. It is broadly divided into two compartments, first relates to the substantive right terming it as a body of the Code and the other, the procedural provisions contained in the First Schedule. It is no SAO No. 7 of 2024 Page 13 of 24 gainsaying that if in the event there is any inconsistence and/or incongruity in the provision contained in the body of the Code and the First Schedule, the former shall prevail. The right to appeal being the substantive right emanating from the statute, the category of the orders provided under Order XLIII Rule 1 of the Code being appealable has to be read in conjunction with the substantive right to an appeal emanating from Clause (i) of sub- Section 1 of Section 104 of the Code of Civil Procedure which engulfed within itself the right of appeal against the order incorporated in Order XLIII Rule 1 of the Code and by virtue thereof the right to appeal can be conferred upon a person aggrieved by such category of order. One cannot overlook the applicability of the provisions contained under Section 105 of the Code creating an embargo in maintaining an appeal from any order save as provided expressly, though the same is amenable to be challenged in the event an appeal is filed from a decree passed by the Court. Even if Section 107 confers power upon the Appellate Court to be exercised in the similar manner that of the Court of Original Jurisdiction, yet it does not encompass within itself the substantive right of an appeal, but has its applicability only on the procedural part.
SAO No. 7 of 2024 Page 14 of 24
16. The aforesaid notion is fortified in the Special Bench Decision of the Calcutta High Court in Sabyasachi Chatterjee v. Prasad Chatterjee and others, reported in AIR 2013 CALCUTTA 231 in the following:-
"9. This marked distinction between the exercise of authority by a Court of original jurisdiction under O. XXXVIII or O. XXXIX or O. XL or like provisions of the Code and the authority exercised by an appellate Court by virtue of the permissive provision in 5. 107(2) of the Code is the defining factor in determining whether an interlocutory appellate order made in exercise of the power under 5. 107(2) of the Code is amenable to an appeal. Since the bar under S. 104(2) of the Code would not apply to any order passed in course of an appeal from a decree, S. 105(1) of the Code would come into play. The embargo under S. 105(1) of the Code is not as uncompromisingly absolute as in S. 104(2) thereof, it only prohibits appeals from all appellate orders for which there is no express provision of appeal. The appeals recognised under O. XLIII, R. 1 of the Code from orders passed by a Court of original jurisdiction cannot be understood to extend by implication to interlocutory appellate orders. Those appellate orders that are appellable are expressly provided for in O. XLIII, R. 1 itself.
10. As an indispensable corollary, once it is noticed that S.107(2) of the Code, when read with S. 108 thereof, covers all appeals as recognised in the Code, the authority of the appellate Court to exercise the powers of the Court of original jurisdiction cannot be traced to the miscellaneous provisions as to other civil proceedings recognised in S. 141 of the Code. For a start, appeals are regarded as appeals in SAO No. 7 of 2024 Page 15 of 24 the Code and cannot be treated as miscellaneous proceedings. Undoubtedly, appellate proceeding cannot be viewed as proceedings of the first instance. Second, S. 141 of the Code extends the procedure provided in regard to suits, to the extent such procedure can be made applicable, to all proceedings in any Court of civil juridiction. The expression "all proceedings" in S. 141 of the Code has necessarily to be seen as all proceedings of civil nature to which the Code does not apply in terms and to which the procedure prescribed for suits by the Code would not have applied but for S. 141 thereof. Since the procedure in the conduct of appeals and the substantive rights conferred on an appellate Court are expressly contained in the Code itself, the specific provisions whether substantive or procedural in the Code governing appeals which arise under the Code will guide the conduct and the course of appeals under the Code and not the residuary provision in S. 141 thereof that makes the procedure under the Code applicable to other proceedings of civil nature.
20. On the principal questions that have arisen here, the judgments of this Court which have a bearing on such aspect need finally to be seen. In the case of Nurnahar Bewa ( AIR 1988 Cal 358) a Full Bench of this Court observed that though the rules appended to the Code detail the machinery for implementing the various provisions of the Code and basically regulate procedural matters, but several parts of the rules appended to the Code lay down substantive law. But the questions posed to the Full Bench in that case are not germane to the issues that have arisen here. The first of the judgments of this Court in chronological order which is relevant to the questions that arise now is the referring judgment in Sushil Kumar De. A suit was dismissed for default and an application for recalling the order of dismissal was also dismissed for the non-appearance of the plaintiff. A further application was made for recalling the order dismissing the restoration SAO No. 7 of 2024 Page 16 of 24 application. Such application was rejected. The order of rejection was sought to be revised before this Court under S. 115 of the Code. The question as to whether an appeal would lie from an order rejecting an application for restoration of an application for setting aside an ex parte order of dismissal of the suit was referred to a Division Bench in the light of a contrary view by a previous single Bench, but only after rendering the following opinion at paragraph 15 of the report:
"15. Hence, this application cannot be termed as an application to fit in that language of O. 43, R. 1, sub-rule (c), as this application was never an application praying for an order to set aside the dismissal of a suit but the same was an application praying for restoration of earlier application 3-10-2001, wherein, prayer was made to set aside the ex parte order of dismissal of the suit and which suffered order of dismissal for default."
It was ultimately held that an order passed by the Appellate Court even if the nature thereof invites an appeal, yet recourse to Section 141 of the Code cannot be made to be amenable to appeal under Section 104 read with XLIII Rule 1 of the Code of Civil Procedure in the following:
"23. In the contemporaneous Division Bench judgment in Jamuna Chakraborty, the order sought to be assailed by way of an appeal in this Court was by an unsuccessful applicant who had sought an injunction in an appeal from a decree. The Division Bench held that the first miscellaneous appeal was not maintainable for the reasons evident in SAO No. 7 of 2024 Page 17 of 24 paragraphs 6 to 10 of the report by referring, inter alia, to S. 141 of the Code.
6. The Supreme Court in the case of Ram Chandra v. State of U.P., reported in AIR 1966 SC 1888 at page 1891 observed that the word proceeding appearing in S. 141 of the Code is not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc.
7. Therefore, after the deletion of the word appeals and the aforesaid observation of the Apex Court, there cannot be any doubt that by taking aid of S. 141 of the Code, the provisions contained in O. 39, Rr. 1 and 2 which primarily relate only to suits can be made applicable to an appeal preferred against a decree passed by the trial Court.
8. Now the question arises whether an appeal will lie against any order passed on such an application under O. 39, Rr. 1 and 2, Code filed before the appellate Court.
9. It is now settled law that by taking support of S. 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of S. 141 of the Code (See Osmani Khan v. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801) (paragraph
7).
10. Therefore, although the provisions contained in 0. 39, Rr. 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under S. 104 of the Code is not available to an SAO No. 7 of 2024 Page 18 of 24 aggrieved person by taking help of S. 141 of the Code (See in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa v. Rabindra Nath Deb, reported in 1988 (1) Chh 461): (AIR 1988 Cal
358).
24. The fourth judgment noticed in the first order of reference, and the most recent in point of time, is that of Mamata Guha. The appeal carried before a Division Bench of this Court in that case was from an order rejecting an injunction application in course of an appeal from a decree. The Division Bench referred to Section 647 of the Code of Civil Procedure, 1882 and the divergence of opinion on whether the expression proceedings..... other than suits and appeals included proceedings in execution. The Allahabad and the Bombay High Courts held that the section applied to applications for execution of decrees, in the sense that the procedure relating to suits was extended thereby to applications in execution; but this Court was of the opinion (in a judgment reported at (1891) 1 ILR 18 Cal 635 (Bunko Behary Gangopadhya v. Nil Madhub Chattopadhya)) that the section did not apply to proceedings in execution. By an amending Act of 1892 an explanation was inserted at the foot of S. 647 of then Code that gave legislative sanction to the Calcutta view. The Division Bench referred to the Privy Council opinion reported at 22 IA 44 (Thakur Pushad v. Sheikh Fakir-ullah) rendered in 1894; that even without the explanation to S. 647, it was evident that the provision applied only to original matters in the nature of suits such as proceedings relating to probate, guardianship and the like. Eminent jurist Dinshah F. Mulla noted in his commentary on the then Code that if the Privy Council opinion had come three years earlier, it would not have been necessary to introduce the explanation to the section. The Division Bench discerned the use of the expression in SAO No. 7 of 2024 Page 19 of 24 regard to suits in S. 141 of the Code of Civil Procedure, 1908 in a departure from the words in S. 647 of the previous Code. The present Code, when enacted, did not carry the explanation that now figures in S. 141 thereof and such explanation was introduced by the amending Act of 1976. After tracing the history of the provision that now appears as S. 141 of the Code, the Division Bench expressed the following opinion at paragraphs 20 to 25 of the report:
20. Section 141 of the Code of Civil Procedure, therefore, extends the procedure provided in regard to suits to proceedings in Civil Courts. It makes applicable to other proceedings only to those portions of the Code, which deal with procedure and those, which deal with substantive rights. This section deals with procedure and procedure alone. It does not confer substantive right not expressly granted by the Code. Unless there is a right of appeal under the specific provisions of the statute, there is no right of appeal from the order passed in a proceeding contemplated by this section. The right of appeal is a substantive right and not a matter of procedure. No appeal, therefore, lies from an order passed in a proceeding of the kind contemplated under this section. Section 141 of the Code of Civil Procedure cannot operate to give an appeal from an order not otherwise appealable. Such right cannot be claimed on the strength of S. 141 of the Civil Procedure Code.
21. The Supreme Court of India in the case of Nawab Usmanali Khan v. Sagar Mal. reported in (1965) 3 SCR 201 (AIR 1965 SC 1798) holds that S. 141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights.SAO No. 7 of 2024 Page 20 of 24
22. The Supreme Court of India in the case of Ram Chandra Aggarwal v. State of Uttar Pradesh, reported in (1966) Supp SCR 393:
(AIR 1966 SC 1888) holds that the expression civil proceeding in 5. 141 of the Code of Civil Procedure is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies, also, to a proceeding which is not an original proceeding
23. This is an appeal against the order, assuming for the sake of argument, rejecting an application for mandatory injunction under O. 39, Rr. 1 and 2 of the Code of Civil Procedure by lower appellate Court. The applicants under O. 39, Rr. 1 and 2 of the Code could be filed in the lower appellate Court only by resorting to S. 141 of the Code of Civil Procedure, which applies only to the procedural matters.
24. We respectfully concur with the view expressed in Jamuna Chakraborty v. Sital Chakraborty, reported in 2007 (3) CHN 166 that an appeal may be treated as a continuation of the lisbetween the parties, but never be treated as the continuation of the suit with in the scheme of the Code. It was never the legislative intention to treat the appeal as the continuation of the suit.
25. We, therefore, hold that this miscellaneous appeal is not maintainable. The appeal is, therefore, dismissed as not maintainable.
25. The first matter that requires attention is as to whether there is any conflict between the Division Bench judgments in Sushil Kumar De and Raj Kumar Rowla on the one hand and those in Jamuna Chakraborty and Mamata Guha on the other. As a corollary, it is also necessary to assess the correctness of the views expressed in the four SAO No. 7 of 2024 Page 21 of 24 decisions. It must be remembered that the ratio decidendior, the reasons for the decision, as the classicists would have it in a judicial pronouncement, and its binding value as a precedent, is confined to the decision on the legal issue that arose on the facts before the Court; and not what can be implied or logically inferred therefrom. The Division Bench judgments in Sushil Kumar De and Raj Kumar Rowla were rendered on factual matrices which are not comparable to the circumstances in which the legal question arises in the first case before this Bench. In Sushil Kumar De an appeal was found to be maintainable from an order of dismissal for default of an application seeking the restoration of a suit that was dismissed for the non-appearance of the plaintiff.
Without immediately going into the correctness of the view taken therein, the Sushil Kumar De dictum of the Division Bench is irrelevant in the context of CO No. 1862 of 2011, where the order impugned is the rejection of an interlocutory injunction in an appeal from a decree, albeit a preliminary decree. The Division Bench view in Sushil Kumar De was rendered in the context of S. 141 of the Code, the explanation whereof expressly refers to O. IX of the Code. But S. 141 of the Code has no manner of application to an order passed in an appeal covered by the Code. Similarly, the view in Raj Kumar Rowla was expressed in the backdrop of an appeal from an order in an interlocutory application in a miscellaneous case where the miscellaneous case was covered by the explanation to S. 141 of the Code. CO No. 1862 of 2011 had, therefore, to be guided by the dicta in Jamuna Chakraborty and Mamata Guha, both of which dealt with the interlocutory orders passed in appeals from decrees. However, the reasons disclosed in Jamuna Chakraborty and Mamata Guha need to be looked at."
SAO No. 7 of 2024 Page 22 of 24
17. Apart from the exposition of law as enunciated hereinabove, another facet in relation to a right to an appeal against an order passed by the Appellate Court can also be looked into. Although the Appellate Court is vested with the power to exercise the powers conferred on the Courts of Original Jurisdiction by virtue of sub-Section 2 of Section 107 of the Code, but it is only the procedural part which applies and does not loath the absolute power of the Court of Original Jurisdiction. It admits no ambiguity that the appeal is a continuation of a "lis" and not the continuation of the "suit". Thus, it is only the procedural aspect, which can be exercised by the Appellate Court, but cannot convert itself in the Court of Original Jurisdiction. Therefore, sub-Section 2 of Section 107 does not override nor whittle down the efficacies of the provisions contained under Section 104 of the Code, more particularly, sub-Section 2 thereof.
18. In the event, the remedy against the final order is not an appeal, an appeal against the interlocutory order, even if provided in the procedural part cannot be conferred nor be assumed. It will get further impetus by incorporation of sub Section 2 of Section 104 of the Code, which creates a complete embargo in filing the SAO No. 7 of 2024 Page 23 of 24 further appeal against any order passed in an appeal under Section 104 of the Code. The moment the final order is passed in such category of the appeal and an embargo is created to challenge the said order by filing a further appeal in the higher forum, it leads to inescapable conclusion that any order passed in the said appeal is not amenable to be challenged by way of further appeal.
19. Thus, this Court has no hesitation to hold that the instant appeal is not maintainable under Order XLIII, Rule 1 (t) of the Code of Civil Procedure having been passed in an appeal filed under Section 104 of the Code. The appeal is dismissed as not maintainable. However, the dismissal of the appeal shall not prevent the appellant to challenge the same before the appropriate forum by instituting an appropriate proceeding and in the event the same is resorted to, this order shall not stand in the way of the same in deciding on merit.
(Harish Tandon) Chief Justice Signature Not Verified Arun Mishra Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 17-Apr-2026 17:18:14 SAO No. 7 of 2024 Page 24 of 24