http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: M/S NEW KENILWORTH HOTEL (P) LTD.

       Vs.

RESPONDENT: ORISSA STATE FINANCE CORPORATION & ORS.

DATE OF JUDGMENT:       20/01/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals  by special leave arise from the judgment and order  of the High Court of Orissa, made on December 16, 1996 in A.H.O. Nos. 40-42/95.      The admitted  facts are  that the appellant had filed a suit for declaration that the steps taken by the respondents under section 29 of the State Financial Corporation Act were illegal and  sought permanent  injunction  restraining  them from disturbing its possession. Pending suit, they sought ad interim injunction  not to  dispossess them  from the hotel. The trial  Court by order dated July 12, 1994 granted status quo whereby the appellant remained in possession of the suit premises. On  appeal filed  by the  respondents, the learned single Judge vacated the status quo order by order dated May 18, 1995.  Feeling aggrieved  the  appellant  filed  Letters Patent Appeal.  By the impugned order the Division Bench has held that the appeals are not maintainable. Thus this appeal by special leave.      Shri A.M.  Singhvi,  learned  Addl,  Solicitor  General appearing for  the appellant,  contents that under Clause 10 of the  Letters Patent  an  appeal  would  lie  against  the judgment of  the learned single Judge to the Division Bench. Though the  order granting status quo by the trial court was vacated by  the High  Court, it  is a  judgment  within  the meaning of  Section 2  (9) of  the Code  of Civil Procedure, 1908 (for  short, the ‘Code’]. Therefore, the bar under Sec. 104 (2)  of the Code is not attracted by operation of Sec. 4 (1) of  the Code.  In  support  thereof,  he  placed  strong reliance on the judgment of the Division Bench of that Court in Sukuri  Dibya &  Ors. Vs.  Hemalata Panda [ 1990 (32) OJD 431 (civil)  1 and  a Full  Bench Judgment  of that Court in Birendra Kr.  Majhi vs.  Sitamani Bewa  [ 1992  (34) OJD 473 (Civil)]. He  also  contends  that  though  this  Court  has considered the non-maintainability of an appeal by operation of Sec. 104 (2) of the Code read with Order XLIII Rule 1(r), the above  distinction was not brought to the notice of this Court and  that, therefore,  the Full  Bench Judgment of the High Court  still holds  the field.  We find no force in the contention.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

    It is  settled legal position that right of appeal is a creature of  the statute. Against an interlocutory order, an appeal has been provided under Sec. 104 (1) of the Code read with Order  XLIII Rule  1. In respect of interim injunction, it is  covered by  Order XLIII Rule 1 (r). In this case, the order of status quo was passed in an application filed under Order XXXIX  Rule 1  of the  Code. Therefore,  it is  not in dispute that  it is an order passed by the civil Court under Order XXXIX  Rule 1 appealable under Order III Rule 1 (r) of the  Code.  Sub-section  (2)  of  Section  104  specifically prohibits Second  Appeal against  such an  order postulating that "No  appeal shall  lie from  any order passed in appeal under this  Section". In  Resham Singh  Pyara Sing vs. Abdul Sattar [(1996) 2 SCC 49] a Bench of this Court consisting of K. Ramaswamy and B.L. Hansaria, JJ. has held that against an appellate order  of a  learned single  Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by  reason of  the bar  created by  sub-section  (2)  of Section 104 of the Code.      Clause 10 of the Letters Patent reads as under:      "An appeal  shall lie...  from  the      judgment  (not   being  a  judgment      passed  in  exercise  of  appellate      jurisdiction in respect of a decree      or order  made in  exercise of  the      appellate jurisdiction  by a  Court      subject to  the superintendence  of      High  Court...  and  not  being  an      order   made    in   exercise    of      reversional jurisdiction...) of one      Judge of the said High Court... and      in    exercise     of     appellate      jurisdiction in respect of a decree      or  order   made  in   exercise  of      appellate jurisdiction  by a  court      subject to  the Superintendence  of      the said High Court where the Judge      who passed  the  judgment  declares      that the  case is  a  fit  one  for      appeal..."      It would,  thus, be  seen that Clause 10 of the Letters Patent consists  of only  two parts.  In the  first part, an appeal shall  lie from  a judgment of a learned single Judge to the  Division  Bench  not  being  a  judgment  passed  in exercise  of   the  appellate  jurisdiction  or  reversional jurisdiction. In other cases, where the learned single Judge exercises the  appellate jurisdiction,  if he certifies that it is  a fit  case for  an appeal  to  the  Division  Bench. Notwithstanding the prohibition contained in the latter part of clause  10, an  appeal would  lie. It  is seen  that  the Division  Bench   in  Sukuri   Dibya’s  case   (supra)   has interpreted Clause  10 and  stated that it consists of three components, namely:      "(i)  Judgment   of  single   Judge      passed  in   exercise  of  original      jurisdiction;      (ii) Judgment  of  a  single  Judge      passed  in  exercise  of  appellate      jurisdiction  against   a  judgment      passed by  a court  subject to  the      superintendence of  the High  Court      in   exercise   of   its   original      jurisdiction: and      (iii) against  judgment of a single      Judge passed  in  exercise  of  its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

    appellate jurisdiction  against the      judgment passed  by a Court subject      to the  superintendence of the High      Court in  exercise of its appellate      jurisdiction;      The above analysis of the learned Judges in that behalf is not  correct as  we  have  stated  above.  The  same  was repeated by  the Full  Bench in  Birendra Kr.  Majhi’s  case (supra).      The question  then  is:  whether  notwithstanding  such prohibition, though  an order  of injunction  passed by  the learned single  Judge in  the appellate  jurisdiction  under Order XXXIX  Rule 1  is a  judgment as held by this Court in Shah Babulal  Khimji vs. Jayaben D.C. Kania & Anr. [(1981) 4 SCC 8],  an appeal  would lie  on the  basis thereof?  It is contended that an appeal would lie to the Division Bench. We find no force in the contention. It is true that the learned Judges composing  of the  Division Bench as well as the Full Bench of  the High  Court construed  that the  ratio in Shah Babulal  Khimji’s  case  would  attract  item  (ii)  of  the analysis of  the learned  Judges and,  therefore, an  appeal would lie to the Division Bench. We are of the view that the learned Judges,  with due  respect, have  no understood  the scope of  the judgment  in Shah Babulal Khimji’s case in its proper  perspective.   Therein,  the  learned  single  Judge exercising the  original  jurisdiction  of  the  High  Court passed an  order in applications filed under Order XL Rule 1 for appointment  of a receiver and issue of injunction order under Order XXXIX Rule 1.      The  question,   therefore,   was:   whether   it   was appealable?  Since  the  learned  Judge  had  exercised  the original  jurisdiction  and  an  appeal  would  lie  to  the Division  Bench   under  Order  XLIII  Rule  1,  this  Court considered that  the order of the learned single Judge was a judgment within the meaning of Section 2(9) of the Code and, therefore, it  was appealable.  It is seen that the exercise of power  by the  learned single  Judge was as a first Judge under the  Code and,  therefore, the order, though it is one passed under  Order XLIII  Rule 1, since it gives a finality as regards  that Court  is  concerned,  was  held  to  be  a judgment within  the meaning  8 Section  2(9) of  the  Code. Section 4(1) of the Code does not apply because it envisages that "In  the absence  of  any  specific  provision  to  the contrary, nothing  in this  Code shall be deemed to limit or otherwise affect  any special  or local  law now in force or any special  jurisdiction or power conferred, or any special form of  procedure prescribed, by or under any other law for the time  being in  force." Since  Section 104(2)  expressly prohibits  an   appeal,  against  an  order  passed  by  the appellate Court  under Order  XLIII Rule 1 read with Section 104(1) no...  appeal would  lie. As a consequence no Letters Patent Appeal  would  lie.  The  view  taken  in  Madhusudan Vegetable Products  Co. Ltd.  Ahmedabad vs.  Bapa  Chemicals Vapi &  Ors. [AIR  1986 Guj.  156] and Firm Chhunilal Laxman Prasad vs.  M/s. Agarwal and Co. & Ors. [AIR 1987 MP 172] by the two  High Courts  is correct  in law.  The view  of  the Division Bench  in Shashikala  vs. Hiren [71 (1991) CLT 197] is correct  in law.  Sukuri Dibya’s  case and the Birendra’s case and not good law.      It is  seen that  the very  object of introducing these amendments was  to cut  down the  delay in disposal of suits and to  curtail spate  of remedial  steps provided under the Code. As  held earlier, the right of appeal is a creature of the statute  and the statute having expressly prohibited the filing of  second appeal  under sub-section  (2) of  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

104, the  right of  appeal provided  under Clause  10 of the Letters Patent would not be available. As already noted, the main part  of Clause  10 clearly  indicates that  "an appeal would lie  from the  judgment not being a judgment passed in exercise of  appellate jurisdiction".  Thereby the  judgment from an  appellate jurisdiction  stands excluded  under  the first part  of Clause  10  of  the  Letters  Patent  itself. Therefore, the Division Bench of the High Court was right in holding that the Letters Patent Appeal would not lie against an order of the learned single Judge.      The appeals are accordingly dismissed. No costs.