Arijit Pasayat, J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Gujarat High Court. Second appeal filed by the respondents in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the Code) was allowed. Though various questions were raised in support of the appeal, it was primarily highlighted that the Second Appeal was allowed without formulating any substantial question of law. There is no appearance on behalf of respondents when the matter is called though learned Counsel had entered appearance.
(3.) Section 100 of the Code deals with "Second Appeal". The provision reads as follows: 100(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 substantial 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 memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial 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 hearing 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 appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the Second Appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained. ;