IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1159 of 2010 (Arising out of I.A. No. 2890/10 in F.A. No. 27/08) 1. Nagendra Kumar, S/O Late Babu Prabhu Upendra of Mogal- Kuan, P.O. Noorsarai, Biharsharif, Distt.- Nalanda 2. Narendra Kumar, S/O Late Babu Prabhu Upendra of Mogal- Kuan, P.O. Noorsarai, Biharsharif, Distt.- Nalanda……Appellants Versus 1. Arbind Tanti, S/O Nand Kesar, R/O Mogal-Kuan, Bankipur, P.O.+P.S.- Sohsarai, Distt.- Nalanda…………… …Respondent with FA No.27 of 2008 1. Nagendra Kumar, S/O Late Babu Prabhu Upendra of Mogal- Kuan, P.O. Noorsarai, Biharsharif, Distt.- Nalanda 2. Narendra Kumar, S/O Late Babu Prabhu Upendra of Mogal- Kuan, P.O. Noorsarai, Biharsharif, Distt.- Nalanda……Appellants Versus 1. Arbind Tanti, S/O Nand Kesar, R/O Mogal-Kuan, Bokipar, P.O.+P.S.- Sohsarai, Distt.- Nalanda………………….Respondent ----------- 4. 29-11-2011 Heard learned counsel for the appellants and learned counsel for the respondent. The issue to be decided at this preliminary stage is whether this L.P.A. is maintainable against an order dated 23rd April, 2004 passed in a pending First Appeal bearing No. 27 of 2008. The learned Single Judge, by the order under appeal has considered an Interlocutory application bearing No. 2890 of 2010 preferred by the appellants. On considering the judgment and decree under appeal as well as relevant orders passed by the Original Court in Execution Proceeding for execution of a sale deed, the learned Single 2 Judge of this Court has found that the prayers made in the Interlocutory applications ought to have been made before the Original Court or they require interference with orders passed in the Execution Proceeding when such orders were not challenged through any Revision application. The learned Single Judge has held that the orders of the court below could not be challenged through Interlocutory applications and on such findings, by the order under appeal the learned Single Judge has declined to stay further proceedings in the court below. According to the learned counsel for the appellants the order under appeal amounts to a judgment and therefore L.P.A. would lie in view of clause-10 of the Letters Patent of this Court. He further submits that the bar on filing of L.P.A. introduced through Section 100-A of the Civil Procedure Code could not be attracted in this case because the order under appeal though amounts to a judgment but does not amount to judgment and decree passed by a Single Judge because the First Appeal itself has not been heard or decided leading to any judgment and decree. In order to support the contention that the order under appeal amounts to a judgment, learned counsel for the appellant has placed 3 reliance upon judgment of the Supreme Court in the case of Midnapore Peoples’ Co-operative Bank Ltd. & Ors. V. Chunilal Nanda & Ors., (2006) 5 SCC 399. In paragraphs 15 and 16 of that judgment it has been clarified that the term ‘judgment’ will include not only judgments as defined in Section 2 (9) and orders enumerated in Order 43 Rule 1 of the C.P.C. but also other orders which may have finality in regard to some collateral matter, which may affect the vital and valuable rights and obligations of the parties. However two category of orders were kept out of the fold of judgments and those are (i) Routine orders which are passed to facilitate the progress of the case till its final adjudication and (ii) Orders which may cause some inconvenience or some prejudice to a party, but which we do not finally determine the rights and obligations of the parties. So far as bar of the Section 100-A of the C.P.C. is concerned, since the First Appeal has not been decided finally resulting into any judgment and decree by the learned Single Judge, the said bar would not be attracted. However, in order to maintain an L.P.A. it must be shown that in the facts of the case the order under appeal decides an issue finally affecting the final decision in the main case or that a 4 collateral issue which is not the subject matter of the main case has been finally decided or a question or issue in controversy in the main case has been finally decided. As noticed earlier the order under appeal is an order by which the learned Single Judge has declined to decide any issue which have arisen on account of orders passed by the Executing Court, on the ground that such subsequent orders have not been challenged and their correctness cannot be decided in the pending First Appeal through interlocutory applications. Hence in our considered view, the order would fall under category No. 5 mentioned in paragraph 16 of the judgment in the case of Midnapore Peoples’ Co-operative Bank Ltd. (supra) and therefore no L.P.A. is maintainable because such order does not amount to a judgment. In view of the aforesaid discussion, we are constrained to hold that the L.P.A. is not maintainable. The appeal is dismissed accordingly. Learned counsel for the appellant has prayed for grant of certificate for appeal to the Supreme Court in accordance with Article 134-A of the Constitution of India. Since this case relates to Civil Proceeding, the provisions of 5 Article 133 have to be kept in mind, the First Appeal in question is still pending in this Court and since we have held on the basis of settled law by the Supreme Court that no L.P.A. lies against and interim order passed by a Single Judge of this Court, in our view, no certificate can be issued for appeal to the Supreme Court. Hence the oral prayer for grant of certificate is rejected. Mkc/ (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)