CMA(MD)/283/2025 of Kodakondan @ Raja Vs Tamilan @ Karuppasamy on 3 November 2026

JUDGMENT

This Civil Miscellaneous Appeal has been filed challenging the order dated 18.12.2024 passed by the Sub Court, Theni, in I.A. No. 1 of 2022 in O.S. No. 329 of 2022, whereby the appellant was directed to furnish security in an application filed under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”).

CMA(MD) No. 283 of 2025

2. The Sub Court, Theni, upon considering the application filed under Order 38 Rule 5 of CPC, by the impugned order dated 18.12.2024, directed the first defendant in the suit, who is the appellant herein, either to deposit the original sale deeds relating to the property standing in his name or to furnish security for a sum of Rs.7,00,000/- on or before 03.01.2025. The matter was thereafter posted to 04.01.2025. Aggrieved by the said order, the appellant has preferred the present appeal before this Court, invoking Order 43 Rule 1(na) of CPC.

3. At the outset, it is relevant to examine the maintainability of the present appeal. Order 43 Rule 1(na) of CPC provides for an appeal against an order passed under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as an indigent person. Such an appeal would lie before the regular Appellate Court to which an appeal against the decree of the Court passing such order would lie. In the present case, the regular Appellate Court against a decree passed by the trial Court would be the District Court, Theni. However, the present case does not concern the rejection of an application seeking permission to sue as an indigent person. Therefore, the appellant's reliance on Order 43 Rule 1(na) of CPC is misconceived.

CMA(MD) No. 283 of 2025

4. Further, Order 43 Rule 1(q) of CPC provides for an appeal against an order passed under Rule 2, Rule 3 or Rule 6 of Order 38 of CPC. In the present case, the impugned order has been passed under Order 38 Rule 5 of CPC, directing the appellant to furnish security. No order has been passed under Order 38 Rule 6 of CPC. Therefore, the impugned order does not fall within the ambit of Order 43 Rule 1(q) of CPC. Consequently, the present appeal is not maintainable under the said provision.

5. Thus, Mr. R. Riya Ahamed, learned counsel for the appellant, has misconstrued the scope and applicability of the relevant provisions of CPC. Neither Order 43 Rule 1(na) nor Order 43 Rule 1(q) provides a statutory right of appeal against the impugned order passed under Order 38 Rule 5 of CPC. Hence, the present appeal is not maintainable before this Court.

6. In view of the above legal position, the learned counsel for the appellant sought permission of this Court to withdraw the appeal with liberty to approach the District Court, Theni, by way of an appropriate appellate remedy. However, such a request is premature, as the impugned order is not, by itself, an appealable order under Order 43 Rule 1(q) of

CMA(MD) No. 283 of 2025 CPC. The appellant has to await further proceedings before the trial Court. In the event of non-compliance with the direction to furnish security, it is for the trial Court to proceed further in accordance with law, particularly in terms of Order 38 Rule 6 of CPC, after affording the parties an opportunity, as required by law.

7. In view of the foregoing reasons, the Civil Miscellaneous Appeal is dismissed as withdrawn. No costs. Consequently, the connected miscellaneous petition is closed. 03-11-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No sji To

1. The Sub Court, Theni, Copy To : Section Officer ( VR Section ) Madurai Bench of Madras High Court

CMA(MD) No. 283 of 2025 DR.P.MURUGAN, J. sji CMA(MD) No. 283 of 2025 03-11-2026