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1 REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3190 OF 2016 (Arising out of S.L.P. (Civil) No. 6662 of 2016)

Raghavendra Swamy Mutt                  …Appellant

Versus

Uttaradi Mutt                                    ...Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, assails the order  

dated 11.02.2016 passed by the learned Single Judge of the  

High Court of Karnataka at Dharwad in I.A. No.1 of 2016 in  

RSA No.100446 of 2015 whereby he has vacated the interim  

order dated 16.12.2015 passed in I.A. No.1 of 2015.

2. The facts for the purpose of adjudication of the present  

appeal  need to be stated in brief.  The respondent, Uttaradi  

Mutt, filed O.S. No.193/1992 in the Court of Civil Judge,  

Koppal but in due course the said suit was transferred to

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the  Court  of  Additional  Civil  Judge,  Gangavati  and  was  

registered as O.S. No.74/2010.  The suit was filed by the  

plaintiff-respondent for the relief(s) for perpetual injunction  

for  restraining  the  defendant-Mutt,  its  agents,  servants,  

devotees,  etc.,  from  entering  upon  the  suit  schedule  

property or interfering with its possession and enjoyment of  

the suit property and/or interfering or disturbing with the  

performance  of  annual  “Aradhana” of  His  Holiness  Sri  

Padmanabha  Teertharu,  Sri  Kavindra  Teertharu  and  Sri  

Vageesha Teertharu.  The suit preferred by the plaintiff was  

dismissed.  

3. The  judgment  and  decree  passed  in  the  suit  was  

assailed before  the Principal  Civil  Judge,  Senior  Division,  

Gangavati and eventually by virtue of the order passed by  

this  Court  in  Special  Leave  Petition  (Civil)  No.  20346  of  

2014, it stood transferred to the Court of Civil Judge, Senior  

Division,  Dharwad  and  numbered  as  R.A.  No.123/2014.  

The first appellate Court allowed the appeal in part.  The  

appellate  Court  restrained  the  present  appellant  from  

interfering with the plaintiff/respondent Mutt's possession  

and enjoyment of suit property subject to the right of the

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defendant Mutt to perform  Adradhanas and  Poojas of the  

Vrindavanas at Navavrindavanagatti.

4. After the appeal was disposed of, the respondent filed  

execution petition,  E.P.  No.122/2015 before  the  Principal  

Civil  Judge,  Junior  Division,  Gangavati.   The  executing  

court  passed  certain  orders  on  10.12.2015.  In  the  

meantime, the appellant, being grieved by the order in the  

Regular Appeal,  had preferred RSA No.100446/2015.  As  

the  order  passed  by  the  executing  court  affected  certain  

rights  of  the  appellant,  it  filed  IA  No.1  of  2015  seeking  

temporary injunction against the respondent.  Be it stated,  

the respondent had filed a caveat which was defective but it  

was allowed to represent through the counsel when the IA  

No.1  of  2015  was  argued.  As  is  discernible  from  the  

narration  of  facts,  the  executing  court  had  directed  the  

Deputy Superintendent of  Police,  Gangavati  to give police  

protection  to  the  decree-holder  for  possession  and  

enjoyment  of  the  suit  scheduled property  and preventing  

the judgment-debtor from trespassing into the suit property  

violating the decree in RA No.123/2014.

5. When  the  matter  stood  thus,  IA  No.1  of  2015  was

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taken up by the High Court.   The learned Single  Judge,  

while  considering  the  interlocutory  application  for  

injunction, passed the following order:-

“List  this  matter  on  20.01.2016  for  filing  of  objections  to  I.A.1/2015  and  2/15.   In  the  meanwhile, registry to secure the LCR from both  the courts  below.  The same should reach this  court  on  or  before  16.01.2016.   However,  it  is  made clear that the appellant, who is defendant  in  O.S.,  and respondent  who is  plaintiff  in  the  O.S., shall have their right to perform pooja on  regular basis without staking claim with respect  to disputed land, which shall  be subject to out  come of this appeal.”

6. As is manifest, the respondent filed objections to I.A.  

No.1/2015 and also filed I.A. No.1/2016 for vacation of the  

interim order.  I.A. No.1/2016 was taken up by the learned  

Single Judge who referred to Order XXXIX Rule 3-A of the  

Code  of  Civil  Procedure  (CPC),  the  authority  in  

A. Venkatasubbiah Naidu v. S. Chellappan & others1,  

noted the contentions advanced by the learned counsel for  

the parties, adverted to the litigations that had been taken  

recourse to by both sides, acquainted itself with the earlier  

order passed by the High Court and came to hold thus :-

“On a reading of the aforesaid order it becomes  

1  AIR 2000 SC 3032

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clear  that  the  interim  application  filed  by  the  appellant along with the appeal before this Court  had to  be considered independently  and on its  own merits.  But, in the instant case what has  happened  is  that  this  Court,  without  issuing  notice to the respondent in the second appeal has  granted  an  interim  order  which  is  to  be  in  operation  till  the  end of  the  appeal.   It  is  not  known as to whether the appellant had satisfied  the Court on any substantial question of law that  would arise in the matter as the matter was listed  for admission.”

7. After  so  stating,  the  High  Court  opined  that  the  

principle  stated  in  Order  XXXIX  Rule  3  had  not  been  

followed,  notice  to  the  respondent  had  not  been  issued  

although permission was granted to  the  counsel  to  raise  

objections and further delved into the distinction between  

an  appeal  under  Section  100  CPC  and  the  regular  first  

appeal, and in the ultimate eventuate, concluded thus:-

“If notice to respondent was to be dispensed with  prior  to  grant  of  an  ad  interim  order  till  the  conclusion of the second appeal then reasons for  doing  so  had to  be  recorded.   But  the  interim  order which is sought to be vacated is bereft of  any reason.  I am of the view that on this short  ground alone order dated 16.12.2015 has to be  vacated as there are procedural irregularities in  the grant of the ad interim order.  Secondly, it is  also  not  known  at  this  point  of  time  as  to  whether, the order passed by this Court in M.F.A.  no.21690/2012 was brought to the notice of this  Court by the appellant or not before the interim

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order was passed.  

In  view  of  the  above,  the  application  I.A.  no.1/2016  for  vacating  interim  order  dated  16.12.2015 is allowed.  Order dated 16.12.2015  stands vacated.  The appellant to seek any date  for  admission  of  the  matter  and  after  hearing  learned counsel for the appellant on admission of  the appeal, this Court to consider I.A. no.1/2015  afresh.   All  contentions  on  both  sides  on  I.A.  No.1/2015 are kept open.”

8. When the  matter  was taken up on 18.03.2016,  this  

Court, after hearing the learned counsel for the parties, had  

passed the following order :-

“Having heard learned counsel for the parties, as  an  interim  measure,  it  is  directed  that  the  petitioner,  Sri  Raghavendra  Swamy  Mutt,  is  permitted  to  do  'aradhana'  from  24th to  26th  March,  2016  and  not  a  day  prior  to  that  or  beyond that.  Needless to say, no equity shall be  claimed  by  the  petitioner  on  the  basis  of  this  order.  That apart, the present arrangement shall  be restricted to this occasion only.”

9. We had, at that time, blissfully perceived being under  

the  impression  that  “Aradhana” is  a  yearly  event,  that  

request to the High Court to dispose of the second  appeal  

could  sub-serve  the  cause  of  justice,  but  the  learned  

counsel  for  the  parties  apprised  us  that  it  is  a  monthly  

affair. Ergo, we have heard  Dr. Rajiv Dhawan and Mr. R.

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Venkataramani,  learned  senior  counsel  for  the  appellant  

and  Mr.  Fali  S.  Nariman,  learned  senior  counsel  for  the  

respondent.

10. It  is  submitted  by  Dr.  Dhawan  and  

Mr. Venkataramani, learned senior counsel, that the High  

Court was not justified in vacating the order of stay on the  

grounds it has done, for the principle of Order XXXIX Rule  

3-A is not applicable when the appellant had prayed for stay  

and passing of interim orders.  It is urged by them that the  

respondent  had  entered  caveat  which  was  defective  in  

nature but it had participated in the hearing and, therefore,  

the  interim  order  could  not  be  regarded  as  an  ex  parte  

order.  Learned senior counsel appearing for the appellant  

would further submit that when the judgment and decree  

passed  in  the  regular  appeal  is  demonstrably  

unsustainable, the High Court should have maintained the  

order  of  stay  and finally  disposed of  I.A.  No.1/2015 and  

should  not  have  entertained  I.A.  No.1/2016  seeking  

vacation of the order of stay.  It has been highlighted that  

the  language  employed  in  Section  100  CPC  though  

stipulates that appeal is to be entertained on substantial

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question of law involved in the case, it does not bar the High  

Court to pass an ad interim order in a grave situation and  

that is the basic purport of Order XLI Rule 5 and Order XLII  

CPC.  

11. Combating the aforesaid submissions,  it  is  urged by  

Mr.  Nariman,  learned  senior  counsel  appearing  for  the  

respondent that the interim order passed by the High Court  

in I.A. No.1/2015 from all angles is an  ex parte order, for  

adjournment was sought on behalf of respondent to argue  

the  matter  but  the  same  was  declined.   Learned  senior  

counsel  would  propone  that  passing  an  order  of  stay  or  

issuing an order of injunction in a second appeal is quite  

different  than  an  interim order  passed  in  a  regular  first  

appeal preferred under Section 96 CPC.  It is canvassed by  

him that formulation of substantial question of law by the  

Court under Section 100 CPC is an imperative to proceed  

with the appeal and the Court cannot proceed unless the  

condition precedent is satisfied and in such a situation, the  

question  of  passing  any  interim  order  or  granting  any  

interim relief does not arise.  Mr.  Nariman  has  drawn  

support from a two-Judge Bench decision in Ram Phal v.

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Banarasi & Ors.2.

12. To appreciate the controversy, it is seemly to refer to  

Section 100 CPC. It reads as follows:-

“Section 100. Second appeal.— (1)  Save as otherwise expressly provided in the  body of this Code or by any other law for the time  being  in  force,  an  appeal  shall  lie  to  the  High  Court from every decree passed in appeal by any  Court subordinate to the High Court, if the High  Court is satisfied that the case involves a sub- stantial question of law.

(2) An appeal may lie under this section from an  appellate decree passed ex-parte.

(3) In an appeal under this section, the memoran- dum of appeal shall precisely state the substan- tial question of law involved in the appeal.

(4) Where the High Court is satisfied that a sub- stantial question of law is involved in any case, it  shall formulate that question.

(5) The appeal shall be heard on the question so  formulated and the respondent shall, at the hear- ing of  the appeal,  be allowed to argue that the  case does not involve such question :

Provided that nothing in this sub-section shall be  deemed to take away or abridge the power of the  Court to hear, for reasons to be recorded, the ap- peal on any other substantial question of law, not  formulated by it, if it is satisfied that the case in- volves such question.”

13. Section 101 CPC reads as under:-

2  (2003) 11 SCC 762

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“Section  101.  Second  appeal  on  no  other  grounds.—No second appeal shall  lie except on  the ground mentioned in section 100.”

14. A plain reading of Section 100 CPC makes it explicit  

that the High Court can entertain a second appeal if it is  

satisfied that the appeal involves a substantial question of  

law.  More than a decade and a half back, in Ishwar Dass  

Jain v. Sohan Lal3 it has been ruled that after the 1976  

Amendment, it is essential for the High Court to formulate a  

substantial  question  of  law  and  it  is  not  permissible  to  

reverse  the  judgment  of  the  first  appellate  court  without  

doing so.

15. In  Roop Singh v. Ram Singh4 the Court had to say  

thus:-  

“It is to be reiterated that under Section 100 CPC  jurisdiction of the High Court to entertain a sec- ond  appeal  is  confined  only  to  such  appeals  which involve a substantial question of law and it  does  not  confer  any  jurisdiction  on  the  High  Court  to  interfere  with  pure  questions  of  fact  while  exercising  its  jurisdiction  under  Section  100 CPC.”  

16. In Municipal Committee, Hoshiarpur v. Punjab SEB  

3  (2000) 1 SCC 434 4  (2000) 3 SCC 708

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&  Others5 it  has  been  categorically  laid  down  that  the  

existence  of  a  substantial  question  of  law  is  a  condition  

precedent for entertaining the second appeal and on failure  

to  do  so,  the  judgment  rendered  by  the  High  Court  is  

unsustainable. It has been clearly stated that existence of a  

substantial  question  of  law  is  the  sine  qua  non for  the  

exercise of jurisdiction under the provisions of Section 100  

CPC.

17. In  Umerkhan v.  Bismillabi  alias Babulal  Shaikh  

and  others6 a  two-Judge  Bench  was  constrained  to  

ingeminate the legal position thus:-  

“In  our  view,  the  very  jurisdiction  of  the  High  Court in hearing a second appeal is founded on  the formulation of a substantial question of law.  The  judgment  of  the  High  Court  is  rendered  patently illegal, if a second appeal is heard and  judgment and decree appealed against is reversed  without  formulating  a  substantial  question  of  law. The second appellate jurisdiction of the High  Court under Section 100 is not akin to the appel- late jurisdiction under Section 96 of the Code; it  is  restricted  to  such  substantial  question  or  questions of  law that may arise from the judg- ment and decree appealed against. As a matter of  law, a second appeal is entertainable by the High  Court only upon its satisfaction that a substan- tial question of law is involved in the matter and  its formulation thereof. Section 100 of the Code  

5  (2010) 13 SCC 216 6  (2011) 9 SCC 684

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provides that the second appeal shall be heard on  the question so formulated. It is, however, open  to the High Court to reframe substantial question  of law or frame substantial question of law afresh  or hold that no substantial question of law is in- volved at the time of hearing the second appeal  but reversal of the judgment and decree passed  in appeal by a court subordinate to it in exercise  of jurisdiction under Section 100 of the Code is  impermissible  without  formulating  substantial  question of law and a decision on such question.”

18. In  the  instant  case,  the  High  Court  has  not  yet  

admitted the matter. It is not in dispute that no substantial  

question of law has been formulated as it could not have  

been  when the appeal has not been admitted.  We say so,  

as appeal under Section 100 CPC is required to be admitted  

only on substantial question/questions of law.  It cannot be  

formal  admission  like  an  appeal  under  Section  96  CPC.  

That  is  the  fundamental  imperative.   It  is  peremptory  in  

character, and that makes the principle absolutely cardinal.  

The issue that arises for consideration is; whether the High  

Court  without  admitting  the  second  appeal  could  have  

entertained IA No. 1/2015 which was filed seeking interim  

relief.   In  Ram Phal (supra),  from  which  Mr.  Nariman,  

learned senior counsel has drawn immense inspiration, the  

two-Judge Bench was dealing with a case where the High

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Court  had  granted  an  interim  order  by  staying  the  

execution of the decree but had not framed the substantial  

question of law. In that context, the Court held:-  

“… However, the High Court granted interim or- der by staying the execution of the decree. It is  against the said order granting interim relief the  respondent  in  the  second appeal  has  preferred  this  appeal.  This  Court,  on  a  number  of  occa- sions,  has  repeatedly  held  that  the  High Court  acquires jurisdiction to decide the second appeal  or  deal  with  the  second  appeal  on  merits  only  when it frames a substantial question of law as  required to be framed under Section 100 of the  Civil Procedure Code. In the present case, what  we find is that the High Court granted interim or- der and thereafter fixed the matter for framing of  question of law on a subsequent date. This was  not the way to deal with the matter as contem- plated under Section 100 CPC. The High Court is  required to frame the question of  law first  and  thereafter  deal  with the matter.  Since the High  Court dealt with the matter contrary to the man- date enshrined under Section 100 CPC, the im- pugned order deserves to be set aside.”

19. To  meet  the  reasoning  in  the  aforequoted  passage,  

Dr.  Dhawan  and  Mr.  Venkataramani  with  resolute  

perseverance  submitted  that  the  decision  in  Ram  Phal  

(supra) is distinguishable as it does not take note of Order  

XLI Rule 5 and Order XLII Rule 1 CPC.

20. Order XLI Rule 5 reads as follows:-

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“5.  Stay  by  appellate  court.—(1)  An  appeal  shall not operate as a stay of proceedings under a  decree or order appealed from except so far as the  appellate court may order, nor shall execution of  a decree be stayed by reason only of an appeal  having been preferred from the decree;  but the  appellate  court  may  for  sufficient  cause  order  stay of execution of such decree.   

Explanation : An order by the Appellate Court for the stay of execution of the  decree shall be effective from the date of the communication of such order to  the court of first instance, but an affidavit sworn by the appellant, based on  his personal knowledge, stating that an order for the stay of execution of the  decree has been made by the Appellate Court shall, pending the receipt from  the Appellate Court of the order for the stay of execution or any order to the  contrary, be acted upon by the court of first instance.

(2)  Stay by court which passed the decree.— Where an application is made for stay of execu- tion of an appealable decree before the expiration  of the time allowed for appealing therefrom, the  court which passed the decree may on sufficient  cause  being  shown  order  the  execution  to  be  stayed.

(3) No order for stay of execution shall be made  under  sub-rule  (1)  or  sub-rule  (2)  unless  the  court making it is satisfied—

(a)  that  substantial  loss  may  result  to  the  party applying for stay of execution unless the or- der is made;

(b) that the application has been made without  unreasonable delay; and

(c)  that security has been given by the appli- cant for the due performance of such decree or  order as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the  court may make an ex parte order for stay of exe- cution pending the hearing of the application.

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(5)  Notwithstanding  anything  contained  in  the  foregoing sub-rules, where the appellant fails to  make the deposit or furnish the security specified  in sub-rule (3) of Rule 1, the court shall not make  an order staying the execution of the decree.”

21. Order  XLII  Rule  1  that  occurs  under  the  Heading  

“Appeals From Appellate Decrees” is as follows:-

“1.  Procedure.—  The  rules  of  Order  XLI  shall  apply, so far as may be, to appeals from appellate  decrees.”

22. In this context, it is useful to refer to Order XLII Rule 2  

which has been inserted by Act 104 of 1976 with effect from  

01.02.1977. It provides as under:-

“2. Power of court to direct that the appeal  be  heard  on  the  question  formulated  by  it.— At the time of making an order under rule  11 of Order XLI for the hearing of a second ap- peal, the court shall formulate the substantial  question of law as required by section 100, and  in doing so, the court may direct that the sec- ond appeal be heard on the question so formu- lated and it shall not be open to the appellant  to urge any other ground in the appeal without  the leave of the court, given in accordance with  the provision of section 100.”

23. Submission  of  the  learned  senior  counsel  for  the

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appellant is that Order XLI Rule 5 confers jurisdiction on  

the High Court while dealing with an appeal under Section  

100 CPC to pass an ex parte order and such an order can  

be passed deferring formulation of question of law in grave  

situations.  Be it stated, for passing an  ex parte order the  

Court has to keep in mind the postulates provided under  

sub-rule (3) of Rule 5 of Order XLI. It has to be made clear  

that the Court for the purpose of passing an ex parte order  

is obligated to keep in view the language employed under  

Section 100 CPC. It is because formulation of substantial  

question  of  law  enables  the  High  Court  to  entertain  an  

appeal and thereafter proceed to pass an order and at that  

juncture, needless to say, the Court has the jurisdiction to  

pass an interim order subject to the language employed in  

Order XLI Rule 5(3).  It is clear as day that the High Court  

cannot admit a second appeal without examining whether it  

raises any substantial  question of  law for  admission and  

thereafter, it is obliged to formulate the substantial question  

of  law.   Solely  because the Court  has the jurisdiction to  

pass  an  ex  parte order,  it  does  not  empower  it  not  to  

formulate the substantial question of law  for the purpose of

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admission, defer the date of admission and pass an order of  

stay or grant an interim relief.   That is not the scheme of  

CPC after its amendment in 1976 and that is not the tenor  

of  precedents of this Court and it has been clearly so stated  

in  Ram  Phal  (supra).   Therefore,  the  High  Court  has  

rectified its mistake by vacating the order passed in IA No.  

1/2015 and it is the correct approach adopted by the High  

Court. Thus, the impugned order is absolutely impregnable.  

24. Having  so  concluded,  we  would  have  proceeded  to  

record dismissal of the appeal. But in the obtaining facts  

and circumstances, we request the High Court to take up  

the second appeal for admission and, if it finds that there is  

a substantial question of law involved, proceed accordingly  

and deal with IA No. 1/2015 as required in law. Needless to  

say,  the  interim  order  passed  by  this  Court  on  earlier  

occasion should not be construed as an expression of any  

opinion from any count. It was a pure and simple ad interim  

arrangement.

25. Resultantly, the appeal, being sans substance, stands  

dismissed with no order as to costs.

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...............................J.         [Dipak Misra]

...............................J.    [Shiva Kirti Singh]

New Delhi. March 30, 2016.