Does a second appeal lie against an order passed in appeal? Give reasons and also refer to relevant provisions.

Question: Does a second appeal lie against an order passed in appeal? Give reasons and also refer to relevant provisions. [WB J.S. 1996, Jharkhand J.S. 2001]

Find the answer to the mains question only on Legal Bites. [Does a second appeal lie against an order passed in appeal? Give reasons and also refer to relevant provisions.]

Answer

Sub-section (2) of Section 104 states that no appeal shall lie from any order made in the appeal. A question may arise whether a Letters Patent Appeal would lie against an order passed by a Single Judge of the High Court.

There was a conflict of opinions on this point in the past but the controversy has been set at rest by a decision of The Supreme Court in Shah Bahulal v. Jayaben D. Kania, [(1981) 4 SCC 8], wherein the Apex Court held that Section 104 applies to appeals to the High Court from subordinate courts. If a Single Judge of the High Court exercises original jurisdiction and makes an order, an appeal is competent under the Letters Patent to a Division Bench.

But if such order is passed by a Court subordinate to the High Court and an appeal against that order is decided by the Single Judge of the High Court under Section 104, no Letters Patent Appeal is maintainable. Resham Singh v. Abdul Sattar [(1996) 1 SCC 49].

Appeal to Supreme Court of India

The bar to further appeal under Section 104(2) does not apply to appeals to the Supreme Court. (AIR 1969 SC 560)

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