PARADEEP PHOSPHATES LIMITED Vs. CHANDRAMANI DEI @ SAHOO

JUDGEMENT

(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 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 Sec. 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 Sec. 104 read with Order 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.