Asoke Kumar Sarkar v. Tapas Kumar Sarkar and Ors.
Civil Procedure – Section 104(2) and Order XLIII CPC – Maintainability of appeal
Case brief
What is this about?
F.M.A.T 499 of 2024, IA No: CAN 1 of 2024, decided 11th February, 2025; Coram: Sabyasachi Bhattacharyya, J. and Uday Kumar, J. Appellant Sri Asoke Kumar Sarkar versus respondents Sri Tapas Kumar Sarkar and others. Appeal against an order passed in a Miscellaneous Appeal, which itself arose from the Trial Judge's refusal of temporary injunction. Held: in view of the bar under Section 104(2) of the Code of Civil Procedure, no further appeal lies against an order passed in a Miscellaneous Appeal under Section 104 and/or Order XLIII CPC. Appeal and connected application dismissed as not maintainable, with liberty to approach the appropriate forum with a properly constituted challenge against the impugned order. Advocates for the appellant: Mr. Debasis Sur, Mr. Hare Krishna Halder, Mr. Dilip Kr. Das. No precedent cases cited in the judgment.
What did the court decide?
Liberty to the appellant to approach the appropriate forum with a properly constituted challenge against the self-same impugned order; leave granted to the learned Advocate-on-record to take back the certified copy of the impugned order upon replacing it with a photocopy for the records.