07 October 2004
Supreme Court
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P.S. SATHAPPAN(DEAD) BY LRS. Vs ANDHRA BANK LTD

Bench: N. SANTOSH HEGDE,S.B. SINHA
Case number: C.A. No.-000689-000689 / 1998
Diary number: 20468 / 1997
Advocates: R. N. KESWANI Vs V. BALACHANDRAN


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CASE NO.: Appeal (civil)  689 of 1998

PETITIONER: P.S. Sathappan (Dead) by Lrs.

RESPONDENT: Andhra Bank Ltd. & Ors.

DATE OF JUDGMENT: 07/10/2004

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

                                         W I T H

CIVIL APPEAL NO. 5385 OF 1998 AND CIVIL APPEAL NOS. 5389-90 OF 2002

S.B. SINHA, J :

       Interpretation of Section 104 of the Code of Civil Procedure  (for  short, ’the Code’) vis-‘-vis Clause 15 of the Letters Patent of the High Court  of Madras is in question in these appeals.  

BACKGROUND FACTS :         Although these appeals involve common questions of law, the factual  matrix of the matter would be noticed from Civil Appeal No.689 of 1998.   

The First Respondent herein filed a suit against the Appellant herein  in the Court of II Addl. Subordinate Judge, Coimbatore which was marked  as O.S. No.403 of 1974.  The said suit was decreed on or about 15.4.1976.   An execution petition was filed by the First Respondent-decree holder for  executing the said decree.  In the said execution proceeding for realization of  the decretal amount the property belonging to the Appellant herein was put  to auction.  The validity of the said auction came to be questioned by the  Appellant by filing an Execution Application on or about 8.10.1979 praying  therein for setting aside the court auction sale  held on 26.9.1979  in respect  of  Ginning factory situate at Tirurppur named and styled Sree  Krishna  Ginning Factory.  The said application was marked as Executive Application  No. 419 of 1979.  The said application was dismissed by the Execution  Court on 10.10.1985 against which an appeal was preferred by the Appellant  which was also dismissed by a learned Single Judge of the Madras High  Court by a judgment and order dated 8.10.1990.   A Letters Patent Appeal  thereagainst purported to be in terms of Clause 15 of the Letters Patent of  the Madras High Court was filed by the Appellant which was dismissed by a  Full Bench of the Madras High Court by a judgment and order dated  22.8.1998 holding that in terms of sub-section (2) of Section 104 of the  Code,  an appeal against an order passed by the Appellate Court under Order  XVIII Rule 1 read with Section 104 of the Code, was not maintainable.  A  certificate of fitness, however,  in terms of  Article 133 of the Constitution of  India was  prayed for by the Appellant and granted by the said Full Bench.    When the matter was placed before a Division Bench of this Court, it  noticed a conflict of opinion between a decision of  a 3-Judge Bench of this  Court in New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance   Corporation and Others [(1997) 3 SCC 462] and a two Judge-Bench in  Resham Singh Pyara Singh vs. Abdul Sattar [(1996) 1 SCC 49], on the one  hand, and  a Constitution Bench decision in Gulab Bai and Another vs.  Puniya [1966 (2) SCR 102], on the other; and referred the matter to a

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Constitution Bench observing :  

"We are aware of the fact that Clause 15 of the  Letters Patent applicable to Madras High Court was  similar to Clause 10 applicable to Orissa High Court  which was construed in the case of  New Kenilworth  (supra).  This Court did not, in New Kenilworth’s case,  consider the effect of the decision in Gulab Bai’s case  (supra).  Furthermore, reference in Clause 15 of the  Letters Patent which excludes the applicability of the  same in relation to a judgment passed in exercise of  appellate jurisdiction in respect of a decree or order made  in exercise of appellate jurisdiction by a court  subordinate to the superintendence of the High Court  would prima facie indicate that it is only where the  Single Judge is hearing an appeal from an appellate order  of the court subordinate to it that the said clause 15  would not apply.

       In our opinion, the matter is not free from doubt,  especially in view of the decision of the Constitution  Bench in Gulab Bai’s case [1966 (2) SCR 102] and it  would be appropriate therefore that the papers are placed  before Hon’ble the Chief Justice for referring the case to  a larger Bench, in view of not only the conflict in  decisions which is stated to be there but also in view of  the importance of the point in issue, namely, the effect of  the provisions of Section 104(2) vis-‘-vis Clause 15 of  the Letters Patent.                      

       That is how the matter is before us.  

SUBMISSIONS :

       Mr. R. Sundravardhan, learned Senior Counsel appearing on behalf of  the Appellant, would submit that the Letters Patent of a High Court setting  out the constitutional power of the court must be held to be   a special statute  and, thus,  in case of a conflict between the provisions thereof and the Code  of Civil Procedure, the former would prevail.  The learned counsel would  contend that the Letters Patent being a special statute,  the right to appeal  contained in Clause 15 thereof cannot be taken away by reason of sub- section (2) of Section 104 of the Code which is general in nature.                    Drawing our attention to the Constitution Bench decision of this Court  in Gulab Bai (supra), the learned counsel would contend that therein several  decisions including the decision of the Full Bench of the Allahabad High  Court L. Ram Sarup vs. Mt. Kaniz Ummehani [AIR 1937 (Allahabad) 165]  having been approved, it is beyond any pale of doubt that a right of appeal  under clause 15 of the Letters Patent of the Madras High Court would be  available to a suitor irrespective of the provisions contained in  sub-section  (2) of Section 104 of the Code of Civil Procedure.

       Mr. Sundravardhan would urge that the nature and character of a  Letters Patent being distinct and different from the Code of Civil Procedure,  a right of appeal conferred upon the suitor by reason thereof cannot be taken  away.  In support of the said contention, the learned counsel has relied upon  Union of India vs. Mohindra Supply Company  [1962 (3 ) SCR 497], Gulab  Bai (supra),  Vinita M. Khanolkar vs. Pragna M. Pai and Others  [(1998) 1   SCC 500], Central Mine Planning and Design Institute Ltd. vs. Union of  India and Another  [(2001) 2 SCC 588],  Chandra Kanta Sinha vs. Oriental  Insurance Co. Ltd. and Others  [(2001) 6 SCC 158],  Sharda Devi  vs. State  of Bihar [(2002) 3 SCC 705], and Subal Paul vs. Malina Paul and Another  [(2003) 10 SCC 361].

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       The decisions of this Court in Resham Singh Pyara Singh (supra) and  New Kenilworth Hotel (supra) do not lay down the correct law, Mr.  Sundravardhan would submit, having regard to the aforementioned  decisions.  The learned counsel would argue that once the appellate  jurisdiction is exercised by the High Court, Clause 15 of the Letters Patent  of the Madras High Court would govern the forum for a second appeal  therefrom; the only restriction being that such an order must be a  ’judgment’.  Strong reliance in this behalf has been placed on Radhy Shyam  vs. Shyam Behari Singh [1971 (1) SCR 783].

       Mr. Sundravardhan would contend that had the intention of the  Parliament been to take away the appellate forum created under Clause 15 of  the Letters Patent, it would have expressly been stated in Sub-Section (2) of  Section 104 of the Code as has been done by the Parliament while inserting  Section 100A in the Code by reason of Code of Civil Procedure amendment  Act, 1976 or Code of Civil Procedure Amendment Act, 2002.  In any event,  the provision of Section 100-A of the Code being not retrospective in  operation, the right of the Appellant to prefer an appeal cannot be said to  have been taken away.  Strong reliance, in this connection, has been placed  on Garikapatti Veeraya vs. N. Subbiha Choudhury [1957 SCR 488].

       Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of  the respondents, on the other hand, would contend that having regard to  Clause 44 of the Letters Patent of the Madras High Court, it is beyond any  doubt or  dispute that the provisions thereof are subject to statutory  provisions framed by the State Legislature or the Parliament.  It was urged  that as an order passed under Order XXI, Rule 90 of the Code can be  appealed against only in terms of sub-section (1) of Section 104 of the Code,  the restrictions by way of a further appeal placed in terms of sub-section (2)  of Section 104 would automatically operate.  In other words, Mr.  Vaidyanathan would submit that sub-section (2) of Section 104 of the Code   applies when an order is appealable in terms of sub-section (1) thereof.    Drawing our attention to a decision of a 4-Judge Bench of this Court in  South Asia Industries Private Ltd. vs. S.B. Sarup Singh and Others  [1965  (2) SCR 756], the learned counsel would argue that a right of appeal  conferred by reason of  Letters Patent can be taken away by a statute either  expressly or by necessary implication and in that view of the matter having  regard to the legislative scheme contained in Section 104 of the Code, it was  not necessary for it to expressly mention that such appeal would not be  maintainable irrespective of the fact that the same is provided for under the  Letters Patent of different High Courts.   

       Mr. Vaidyanathan would contend that the decisions of this Court in  Mohindra Supply Company (supra) and South Asia Industries Private Ltd.  (supra) do not lay down any law contrary to or inconsistent with the decision  of this Court in Gulab Bai (supra).

       It was urged that while enacting Section 100-A of the Code, the  Parliament specifically referred to the Letters Patent of the High Court  keeping in view  the fact  that by reason thereof  all appeals provided for  thereunder became barred whether under the Letters Patent or special statute.   

STATUTORY PROVISIONS :

       Clauses 15 and 44 of the Letters Patent of the Madras High Court read  as under :          "15. Appeal from the courts of original jurisdiction  to the High Court in its appellate jurisdiction.-And  we do further ordain that an appeal shall lie to the  said High Court of Judicature at Madras, Bombay,  Fort William in Bengal from the judgment (not  being a judgment passed in the exercise of  appellate jurisdiction in respect of a decree or  order made in the exercise of appellate jurisdiction

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by a court subject to the superintendence of the  said High Court and not being an order made in the  exercise of a revisional jurisdiction, and not being  a sentence or order passed or made in exercise of  the power of superintendence under the provisions  of Section 107 of the Government of India Act, or  in the exercise of criminal jurisdiction) of one  Judge of the said High Court or one Judge of any  Division Court, pursuant to Section 108 of the  Government of India Act, and that notwithstanding  anything hereinbefore provided, an appeal shall lie  to the said High Court from a judgment of one  Judge of the said High Court or one Judge of any  Division  Court, pursuant to Section 108 of the  Government of India Act, on or after the first day  of February 1929 in the exercise of appellate  jurisdiction in respect of a decree or order made in  the 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; but  that the right of  appeal from other judgments of  Judges of the said High Court or of such Division  Court shall be to us, our heirs or successors in our   or their privy council as hereinafter provided."

"44. Powers of the Indian Legislature preserved.- And we do further ordain and declare that all the  provisions of these Our Letters Patent are subject  to the Legislative powers of the Governor-General  in Legislative Council, and also of the Governor- General in Council under section 71 of the  Government of India Act, 1915; and also of the  Governor-General, in cases of emergency under  Section 72 of the Act, and may be in all respects  amended and altered thereby."          

                         Sections 4(1), 100A, 104 and 117 of the Code read as under :          "4. Savings.-(1) 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."

"100A. (as inserted in 1976) Notwithstanding  anything contained in any Letters Patent for any  High Court or in any other instrument having the  force of law or in any other law for the time being  in force, where any appeal from an appellate  decree or order is heard and decided by a single  Judge of a High Court, no further appeal shall lie  from the judgment, decision or order of such single  Judge in such appeal or from any decree passed in  such appeal."

"100A. (as substituted in 2002)  No further  appeal in certain cases. \026 Notwithstanding  anything contained in any Letters Patent for any  High Court or in any other instrument having the  force of law or in any other law for the time being

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in force, where any appeal from an original or  appellate decree or order is heard and decided by a  single Judge of a High Court, no further appeal  shall lie from the judgment and decree of such  single Judge."

"104. Orders from which appeal lies \026 (1) An  appeal shall lie from the following orders, and save  as otherwise expressly provided in the body of this  Code or by any law for the time being in force,  from no other orders :-

[***}

(ff)    an order under section 35A;

(i)     any order made under rules from which an  appeal is expressly allowed by rules:

Provided that no appeal shall lie against any  order specified in clause (ff) save on the ground  that no order, or an order for the payment of a less  amount, ought to have been made.

       (2) No appeal shall lie from any order  passed in appeal under this section."   

"117.  Application of Code to High Court.-Save  as provided in this Part or in Part X or in rules, the  provisions of this Code shall apply to such High  Courts."

       Order XLIII, Rule 1 and Order XLIX , Rules 1, 2 and 3  of the  Code read as under                    "1. Appeal from orders.- An appeal shall lie from  the following orders under the provisions of  section 104, namely :-         \005                    \005                    \005"

       (j)  an order under rule 72 or rule 92 of  Order XXI setting aside or refusing to set aside a  sale;"  

"Order XLIX of the Code of Civil Procedure   Chartered High Courts

1. Who may serve processes of High Court.-Notice  to produce documents, summons to witnesses, and  every other judicial process, issued in the exercise  of the original civil jurisdiction of the High Court,  and of its matrimonial, testamentary and intestate  jurisdictions, except summonses to defendants  writs of execution and notice to respondents may  be served by the attorneys in the suits or by  persons employed by them, or by such other  persons as the High Court, by any rule or order,  directs."

2. Savings in respect of Chartered  High Courts.- Nothing in this Schedule shall be deemed to limit  or otherwise affect any rules in force at the

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commencement of this Code for the taking of  evidence or the recording of judgments and orders  by a Chartered High Court.

3.  Application of rules.- The following rules shall  not apply to any Chartered High Court in the  exercise of its ordinary or extraordinary original  civil jurisdiction, namely :-

(1)     rule 10 and rule 11, clauses (b) and  (c), of Order VII;   (2)     rule 3 of Order X;

(3)     rule 2 of Order XVI;

(4)     rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and  16 (so far as relates to the manner of  taking evidence) of Order XVIII;

(5)     rules 1 and 8 of Order XX; and

(6)     rule 7 of Order XXXIII (so far as  relates to the making of a  memorandum); and rule 35 of Order  XLI shall not apply to any such High  Court in the exercise of its appellate  jurisdiction."

ANALYSIS :

       The Code of  Civil Procedure, 1908 (Code) was enacted to consolidate  and amend the laws relating to the procedure of the Courts of Civil  Jurisdiction.   The Code includes rules contained in the Schedule appended  thereto.  Section 3 provides for the hierarchy of the courts for the purposes  of the said Code stating that the District Court is subordinate to the High  Court, and every Civil Court of a grade inferior to that of a District Court   and every Court of Small Causes is subordinate to the High Court and  District Court.  Sub-section (1) of Section 4 of the Code provides for  savings, which is subject to any provisions to the contrary.  

By Section 4 of the Code it is not to be inferred that the provisions  thereof do not apply to proceedings under special or local laws, but only  points out that where there is inconsistency, the rules of the Code shall not  prevail.

Section  104 of the Code which occurs in Part VII of the Code  provides for appeals from original decrees and orders.  Sections 96 to 103  provide for appeals from original and appellate decrees whereas Sections  104 and 105 provide for appeals from orders.   

It is not in dispute that an appeal refusing to set aside  a court auction  sale in terms of Order XXI Rule 92 of the Code would be appealable under  Order XLIII, Rule 1 read with Section 104(1)(i) thereof.  The special or local  law, the provisions whereof may be in conflict with the Code of Civil  Procedure as stated in Section 4 is subject to "in the absence of any specific  provision to the contrary" which would mean "in the absence of any specific  provision to the contrary contained in the Code".   Such a provision contrary  to the Code may be found in another statute, be it a special or a local law.

Section 104 of the  Code has to be read as a whole.  Sub-section (1) of  Section 104 provides for appeals from the orders specified therein and from

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no other; save as otherwise expressly provided in the body of the said Code  or any law for the time being in force.  When the special statute confers a  right of appeal, such right is saved, but by reason thereof no right of appeal  is  created under Section 104 of the Code.   

When a right of appeal is conferred  under a special statute, the bar  contained in sub-section (2) of Section 104 of the Code would not operate  and a right of intra-court appeal provided for in the Letters Patent of the  High Court subject to any statutory embargo would, thus, be saved.   To put  the matter differently, if a  right of appeal is created by a statute, the same  would be governed by the terms thereof.   The question as to whether any  appeal governed by Clause 15 of the Letters Patent is maintainable or not  will have to be judged having regard to the provisions contained therein as  also the scheme thereof.     It is not in dispute that an appeal under Order XLIII, Rule 1 of the  Code may either lie before the District Court or the High Court.  An  appealable  order may also be passed by a High Court in its original  jurisdiction.  A right to maintain an appeal indisputably would depend upon  the subject matter thereof.   Having regard to Section 4 read with Order 49  of the Code only certain provisions of the Code as specified therein would  have no application on the original side of the High Court.  In the event, an  appealable  order is passed by the High Court in its original jurisdiction, an  appeal may be maintainable both under Section 104 of the Code as also  under Clause 15 of the Letters Patent,  although the said right arises from  two different sources, but as at  present advised we need not advert to the  effect thereof.   

Sections 104  and 105 provide for an integrated scheme.  The  provisions contained therein must be read as a whole.  By reason of sub- section (1) of Section 104, a limited right of appeal has been conferred  in  relation to the categories of cases specified  therein.  However, if an order is  passed which does not come within the purview of sub-section (1) of Section  104, the right of appeal must be referable to any other provision of the Code,  as for example, Section 96 or Section 100 or any other special statute.   Section 104 provides for an appeal from an order passed by an appropriate  court.   Section 104 and Order XLIII of the Code contain provisions as  regard appealability of the orders in the cases specified therein and in that  view of the matter they must be invoked in their entirety and not in isolation.  

       A right of appeal is a creature of statute and the said right, thus, can  only be enjoyed if law confers the same.  The Legislature thought it fit to  confer such a right upon the suitor by reason of Section 104 of the Code read  with Order XLIII thereof.  When a right is granted under a statute, a further  right of appeal must receive such construction which would give effect to  the plain meaning of the words emphasized in the section.

       By reason of sub-section (1) of Section 104, apart from the orders  made appealable therein, the Code recognizes that there may be other orders  appealable under any other law for the time being in force and further  provides that other orders save as otherwise expressly provided in the body  of the Code or by any law for the time being in force, would not be  appealable ones.

Sub-section (1) of Section 104 of the Code provides for an appeal  from the original order whether passed by a subordinate court or High Court  exercising an original jurisdiction and not from an appellate order.  In other  words, it provides for a first appeal.  An appeal under Clause 15 of the  Letters Patent is saved under Sub-section (1) of Section 104 of the Code  when a right of appeal is required to be exercised in relation to an original  order.  An appellate order is not contemplated by Sub-section (1) of Section  104 of the Code.  Letters Patent of a High Court or a special statute also in  the context of Section 104(1) of the Code do not speak of an appellate order.   Thus, when an appeal under Section 104(1) or the Letters Patent of the High  Court is availed of, there is no question of any further appeal unless the same

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is provided for under the statute itself.

Sections 4 and 104 of the Code, furthermore, must be read together.   Appeals under the special statute is saved only to the extent a contrary  provision is not contained in other provision thereof.

       Confusion in judicial mind has arisen as to whether an appellate order  passed by the High Court is also saved in terms of sub-section (1) of Section  104 of the Code of Civil Procedure.  As noticed hereinbefore,  sub-section  (1) of Section 104 provides for an appeal from an original order; but saving  clause contained in sub-section (1) of Section 104 postulates that an appeal  from an  order  other than those specified in sub-section (1) thereof  shall be  maintainable provided a provision therefor exists in the said statute.  An  appeal under the Letters Patent may, therefore, be availed of   in relation to  an order which has not been specifically provided for under sub-section (1)  of Section  104 of the Code of Civil Procedure, which is  otherwise a  judgment within the meaning thereof.  The saving clause contained in sub- section (1) of Section 104 of the Code of Civil Procedure does not go further  and say  that even an order passed in appeal from an order specified under  sub-section (1) of Section 104 of the Code of Civil Procedure would stand  saved.

By reason of Sub-section (1) of Section 104 of the Code, appeals  provided for under the statutes including Letters Patent might have been  saved but that became necessary only because of appeals irrespective of the  source of appeal whether accruing from the Code or any other statute were  treated alike.  What is, thus, saved is the right of appeal conferred under  special statutes.  By reason of such saving clause per se a right of appeal is  not conferred nor such appeal can be said to have been preferred in terms of  Sub-section (1) of Section 104 of the Code.  In case a right of appeal is  limited or circumscribed by any condition under any special statute, the  same would prevail over Sub-section (1) of Section 104 because saving of  such right would be subject to such limitations or conditions.

Let us consider this from a slightly different angle.

Sub-section (1) of Section 104 saves Letters Patent Appeal.  The  remedy of appeal under Letters Patent may be availed of in relation to an  order passed by a court other than those enumerated under Sub-section (1) of  Section 104 of the Code subject to the condition that the same must be a  ’judgment’.

Once, however, a right of appeal either in terms of Sub-section (1) of  Section 104 or Letters Patent is availed of, there would not be any further  right of appeal from the appellate order in view of Sub-section (2) of Section  104, for the simple reason, that Letters Patent also provides for only one  appeal, i.e., from a Single Judge of a High Court to a Division Bench.  It  may be true that in certain cases, Letters Patent Appeals are available even  from an appellate order passed by a learned Single Judge of the High Court  to a Division Bench but the same was permissible only when there was no  bar thereto and subject to the condition laid down in clause 15 itself.  We  may notice that when a first appeal or second appeal was disposed of by a  Single Judge, a Letters Patent Appeal had been held to be maintainable  therefrom only because there existed no bar in relation thereto.  Such a bar  has now been created by reason of Section 100-A of the Code.  No appeal  would, therefore, be maintainable when there exists a statutory bar.  When  the Parliament enacts a law it is presumed to know the existence of other  statutes.  Thus, in a given case, bar created for preferring an appeal expressly  cannot be circumscribed by making a claim by finding out a source thereof  in another statute.

For proper construction of Section 104 of the Code, vis-‘-vis Clause  15 of the Letters Patent, it is necessary to ascertain the intention of the  Parliament.  If a right of appeal, it is trite, is a creature of statute, it must be  governed thereby.  Sub-section (2) of  Section 104 clearly states that no

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appeal from an order passed under sub-section (1) thereof would be  maintainable. Proviso appended to Section 104 of the Code provides for a  limited right of appeal in respect of clause (ff) of sub-section (1) of Section  104 of the Code which is an indicia of the fact that such a right may be  circumscribed.  The statute has used the language in the negative and, thus  must be construed as mandatory.  In view of the fact that an appeal from an  order specified in Section 104 of the  Code is maintainable only thereunder  and from no other it leads to incongruity that in the event the forum is the  High Court the appellate judgment would be governed by Clause 15 of the  Letters Patent, but in the event the forum is the District Judge, the judgment  would be governed by sub-section (2) of Section 104 of the Code.  If  such a  contention is accepted, the same would not only give rise to an anomalous  situation which may be culled out from a plain reading of the said provision  but also would give rise to different treatment to different classes of litigants,  although a right of appeal is available to both the classes from orders of  similar nature which possibility should, as far as possible, be avoided.  The  wordings of Section 104(2) of the Code, in our opinion, do not call for more  than one interpretation.  Liberal interpretation, as is well known, is the rule.    

Furthermore, it is now well-settled that when two interpretations of a  statute are possible, the court may prefer and adopt the purposive  interpretation having regard to object and intent thereof.  [See Swedish  Match AB & Anr. Vs. Securities & Exchange Board, India & Anr., 2004 (7)  SCALE 158]

       The purport and object of enacting sub-section (2) of Section 104 of  the Code is to avoid delay in disposal of the matter.  When the statutory  intention of minimizing the delay in the finality of the decision is manifest,  the Court must interpret the provisions accordingly.  [See Municipal  Corporation of Brihanmumbai and Another vs. State of Bank of India \026  (1999) 1 SCC 123].  Appeals under the aforementioned provision as also  under Order LXIII of the Code relate to interlocutory orders.  By reason of  an order passed thereunder the matter may not be finally disposed of.  If the  Parliament in the aforementioned situation thought it fit to cut down a  further appeal, no exception thereto can be taken.  In any event, even if it be  held that by reason of Sub-section (2) of Section 104 of the Code a party  may be deprived of a Letters Patent Appeal in terms of Clause 15 of the  Letters Patent, he would be at liberty to file, in an appropriate case, an  application under Article 136 of the Constitution of India before this Court.   Even, in a case where the remedy under Section 104(1) is not availed of, in  an appropriate case the order may be questioned in the appeal against the  ultimate decree in terms of Section 105 thereof.

NATURE AND EXTENT OF POWER OF THE HIGH COURT  UNDER LETTERS PATENT :

Letters Patent is a special statue but in the event of a conflict, as  would appear from the discussions made hereinafter, the provisions of the  Code shall prevail.  The power under Clause 15 of the Letters Patent is not a  constitutional power of a High Court.  Reliance placed on Vinita M.  Khanolkar (supra)  and  Sharda Devi  (supra) in which one of us (Variava,  J.) was a member is misplaced.  This Court in the aforementioned decisions  did not lay down a law that the statutory provision providing for an appeal  under the Letters Patent was  in terms of the constitutional power of a High  Court.

       The British Parliament passed Indian High Courts Act in August,  1861.  The Act of 1861 empowered the crown to establish, by Letters   Patent, High Courts of Judicature at Calcutta, Madras and Bombay.  The  jurisdiction and powers of the High Courts were to be fixed by Letters  Patent.  Letters Patent, therefore, is a subordinate legislation.

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For history of the establishment of the High Courts of India, reference  may be made to Her Majesty the Queen Vs. Burah [(1878) 3 PC 889] and  Chunial Basu and Another vs. The Hon’ble Chief Justice of the High Court  at Calcutta and Others [AIR 1972 Calcutta 470]  

The Letters Patent although is a subordinate legislation but  nevertheless would be a law within the meaning of Articles 225 and 372 of  the Constitution of India, but the same cannot prevail over a Legislative Act,  if clause 44 of the Letters Patent is to be given a proper meaning.  The  provisions of  Letters Patent despite attainment of independence by India are  saved by Section 106 of the Government of India Act, 1919,  Section 223 of  the Government of India Act, 1935, Clause 2(1) of India (Adaptation of  Existing Laws) Order, 1949 and Section 18(3)  of the Independence Act,  1947.   Letters Patent, thus, would undoubtedly come within the meaning of  existing law but the status thereof  cannot be higher than that of the statute  made law.  Not only in terms of Clause 44 of the Letters Patent, but having  regard to the fact that the same is a subordinate legislation, it would be  subject to laws made by a competent legislature.

The  Letters Patent is not a statutory enactment although it has the  force of law.  Clause 44 of the Letters Patent in no uncertain terms states that  the provisions thereof would be subject to the legislative powers of the  Governor-General in Legislative Council, and also of the Governor General- General in Council under Section  71 of the Government of India Act, 1915.   

In Black’s Law Dictionary, Fifth Edition at page  1278 the expression  "Subject to"  has  been defined as under : "Liable, subordinate, subservient, inferior,obedient to;  governed or affected by; provided that; provided,  answerable for. Homan v. Employers Reinsurance Corp,.,  345 Mo. 650, 136 S.W. 2d 289, 302"       

[See Printers (Mysore) Ltd. vs. M.A. Rasheed and Others \026 (2004) 4  SCC 460]

The provisions of the Letters Patent are also in all respects amenable  to amendments and alterations by any Legislative or Parliamentary Acts.    The Code of Civil Procedure is a Parliamentary Act.  Section 4 of the Code  saves only such provisions in relation whereto there does not exist any  provision contrary thereto in the Code.  The said clause would, thus, apply  only when there is no specific provision in the Code to the contrary or in any  other provision contained in any other special statute.  We have, thus, no  hesitation in coming to the conclusion that when an appeal is maintainable  only in terms of  sub-section (1) of Section 104, sub-section (2) thereof  would control such appeal and the limitation provided thereunder on further  appeal shall be fully  applicable.

The Letters Patent under the seal may be issued for various purposes,  but primarily by way of executive function.  The Letters Patent, however,  may be issued also on the advice of the Privy Council or under a Statute.   (See Halsbury’s Laws of England, Fourth Edition, Vol. 8, page 677).

In Law Lexicon cum Digest by N.M. Mulchandani, Vol. A to L, at  page 932 ’Letters Patent’ has been defined to mean ’Letters by which the  King/ Sovereign makes his grants, whether of lands, honours, franchise or  anything else’.

       If Letters Patent was to prevail over the Code, no appeal may lie from  a judgment of Single Judge to Division Bench in relation to orders specified  in Section 104.  Conflict in this behalf is sought to be resolved in Shah  Babulal Khimji (supra)

       Before adverting further as regard this question, we may notice that in   Shah Babulal Khimji Vs. Jayaben D. Kania and Another [(1981) 4 SCC 8],

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it is stated :

"\005In fact, the question of application of the Code of  Civil  Procedure to internal appeals in the High Court  does not arise at all because the Code of Civil Procedure  merely provides for a forum and if Order 43 Rule 1  applies to a Trial Judge then the forum created by the  Code would certainly include a forum within the High  Court to which appeals against the judgment of a Trial  Judge would lie\005"

In Shah Babulal Khimji (supra), Mohd Naimullah Khan Vs. Ihsan  Ullah [1892 ILR 14 All 226] and Piarilal Vs. Madanlal [1917 ILR 39 All  191 : AIR 1917 All 325] were approved whereas Ramsarup (supra) and  Vaman Ravji Kulkarni Vs. Nagesh Vishnu Joshi and Ors. [AIR 1940 Bom.  216] were expressly overruled.

Unfortunately, before us the overruled decisions in Ram Sarup (supra)   and Vaman Ravji (supra) were relied upon.  We may notice that recently a  Bench of this Court expressed its anguish when an overruled decision was  cited.  [See State of Orissa Vs. Nalinikanta Muduli [2004 AIR SCW 4713.

It is, therefore, clear that no Letters Patent Appeal would lie against  the orders passed in appeals disposed of by a learned Single Judge of the  High Court in appeals preferred thereto under Order XLIII Rule 1 read with  Section 104 of the Code against the order passed by the subordinate court or  district courts.

SCHEME OF THE STATUTE:

       The question as to whether a Letters Patent Appeal would be  maintainable or not would also depend upon the scheme of the statute.

       Such a scheme barring a Letters Patent Appeal is found to be existing  in Representation of the People Act.  Under Article 329(b) of the  Constitution, a Single Judge of a High Court exercises a jurisdiction to hear  an election dispute.  While doing so he exercises a special jurisdiction.   Having regard to the history thereof as also the limited nature of appeal from  judgment disposing of an election petition expressly provided under Section  116-A of the Representation of the People Act, it will be evident that a right  of appeal under the Letters Patent had been held to have been taken away by  necessary implication. .  (See N.P. Ponnuswami Vs. Returning Officer,  Namakkal Constituency and Ors. 1952 SCR 218, Upadhyaya Hargovind  Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki and Others, (1988) 2  SCC 1 and Dipak Chandra Ruhidas Vs. Chandan Kumar Sarkar, (2003) 7  SCC 66)

       Even in the aforementioned cases also, it has been held that a Letters  Patent appeal may be barred by implication.

APPEAL UNDER SPECIAL STATUTE :

       The question, however, may be different when an appeal is provided  for under a special statute.  It is trite that Section 104(1) of the Code saves  such an appeal.  Section 104, therefore, saves such appeal in view of the  appeals  provided under the special statute but it does not create a right of  appeal as such, and it does not, therefore, bar any further appeal also, if the  same is provided for under any other Act for the time being in force which  would include a Letters Patent.  Whenever the statute provides such a bar, it  is so stated either expressly or by necessary implication.   

It is true that Section 100A of the Code contains a non-obstante clause  as regard the overriding effect of the said provision over the Letters Patent of  the High Court but the same, in our considered opinion, was done by way of  ex abundanti cautela.  Furthermore, the Code of Civil Procedure

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(Amendment) Act, 1976 and the Code of Civil Procedure (Amendment) Act,  2002 being subsequent statutes, the same may not have any application in  relation to the interpretation of sub-section (2) of Section 104 of the Code.

It is not necessary, in my considered opinion, that the provision  restricting a further right of appeal must specifically mention the provisions  of the Letters Patent of the High Courts or any other statute inasmuch as the  same has to be construed having regard to the scheme thereof. What is  recognized under Sub-section (1) of Section 104 of the Code following the  decisions of the Calcutta, Madras and Bombay High Courts in Toolsee  Money Dassee & Others Vs. Sudevi Dassee & Others [(1899) 26 Cal. 361],  Sabhapathi Chetti and Others Vs. Narayanasami Chetti [(1902) 25 Mad.  555] and the Secretary of State for India in Council Vs. Jehangir Maneckji  Cursetji [(1902) 4 Bom. L.R. 342] respectively, are those appeals which are  provided for under special statute and not an appeal from the appellate order  therein.  Let us at this juncture notice as to what had been decided in those  cases although the position in law is, to some extent, sought to be clarified in  Shah Babulal Khimji (supra) which would fall for discussions hereinafter at  some details.

       In Toolsee Money Dassee (supra), the question which arose for  consideration was whether refusing to set aside an award against an order by  a Single Judge of the High Court in the original side of the appeal would be  governed by Section 588 of the Code of Civil Procedure, 1861.  The said  contention was rejected on the premise that Section 588 of the Code does not  control appeals under special statute.  The Court followed Hurrish Chunder  Chowdhry Vs. Kali Sunderi Debi [10 IA 4].

       In Sabhapathi Chetti(supra), the question which arose for  consideration was as to whether an order passed by a judge sitting on the  Original Side of the Court dismissing a claim preferred under Sections 278  and 282 of the Code of Civil Procedure by the mortgagees of immovable  property which had been attached in execution of a decree is subject to  appeal.  It was held that Article 15 of the Letters Patent is not restricted by  Sections 588 and 591 of the Code of Civil Procedure.

       In Jehangir Maneckji Cursetji (supra), the question which arose for  consideration was as to whether an order under Section 135 of the Code of  Civil Procedure is a judgment within the meaning of Clause 15 of the Letters  Patent.  It was opined that the same is not a judgment but while doing so an  observation was made that Section 588 of the Code of Civil Procedure has  not taken away the right of appeal given by Clause 15 of the Letters Patent  having regard to the decisions prevailing at the relevant time.

       Section 104 of the Code of Civil Procedure requires appeals preferred  under the special statute having regard to the aforementioned decisions.  The  decisions of the Calcutta High Court and the Bombay High Court would  indicate that a right of appeal under a special statute was not held to be  barred.  The Bombay High Court merely held that even though an order  under Section 135 although is not an order against which an appeal would lie  under Section 588 of the Code of Civil Procedure, still it proceeded to hold  that if such an order was a judgment, an appeal under Clause 15 of the  Letters Patent would be maintainable.  In Jehangir Maneckji Cursetji  (supra), as noticed hereinbefore, it was held that an order under Section 135  would be a judgment within the meaning of Clause 15 of the Letters Patent  and only in that context it was held that Section 588 of the Code does not  govern the Letters Patent Appeal.

       Section 104 of the Code opens with the words "an appeal shall lie  from the following orders and \005from no other orders".  What is, thus, saved  is an appeal which is expressly provided for under any other statute  including the Letters Patent of the High Court.  The saving clause contained  in Section 104(1) of the Code must be literally construed having regard to  the fact that the provisions other than specifically mentioned in Order 49 of

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the Code the other provisions of the Code are applicable even on the original  side of the High Court.

To put it pithily, if there is a conflict between an appeal under the  Code and the Letters Patent both the provisions have to be read  harmoniously so as to save an appeal which is not otherwise provided for.   By way of example it may be noticed that when an appeal is maintainable  under the Letters Patent by reason of its being a ’judgment’ within the  meaning of Letters Patent such an appeal would be maintainable despite the  fact that no provision therefor has been made in Section 104 thereof.  In a  case, however, where an appeal may be maintainable both under Sub-section  (1) of Section 104 as also the Letters Patent a difficulty may arise to the  extent that where the orders sought to be appealed against is not a  ’judgment’ whether Order XLIII Rule 1 would come into play.   But if both  the provisions are read together, it may be held that Order XLIII Rule 1  provides for an additional right.  So construed, a harmonious meaning can be  attributed both to Section 104 of the Code and to Letters Patent but we have  no doubt in our mind that if a right of appeal is availed under Sub-section (1)  of Section 104 of the Code, no further appeal would be maintainable.   

We may notice that sub-section (2) of Section  39 of the Arbitration  Act, 1940 does not contain any non-obstante clause.  The said provision  does not refer to the Letters Patent of the High Court or any other special  Act.  Despite the same, it was held in Mohindra Supply Company (supra)  that  a Letters Patent Appeal would be  barred by necessary implication.

       The point at issue is no longer res integra  in view of several decisions  of this Court in National Sewing Thread Co. Ltd. vs. James Chadwick and  Bros Ltd. [AIR 1953 SC 357], Maharashtra State Financial Corporation vs.  Jaycee Drugs and Pharmaceuticals (P) Ltd. and Ors. [(1991) 2 SCC 637],  Union of India vs. Aradhana Trading Co. and Ors. [(2002) 4 SCC 447],   Sharda Devi (supra), Subal Paul (supra) and Liverpool & London S.P. & I  Association Ltd. Vs. M.V. Sea Success I and Another [(2004) 9 SCC 512].

SECTION 104 OF THE CODE \026 WHETHER APPLIES TO  ORIGINAL SIDE :

       The Code indisputably applies to the original side of the High Court.   Section 117 and Order XLIX specifically exclude only such provisions of  the Code which would not apply to the original side of the High Court. [See  Mt. Sabitri Thakurain vs. Savi and Another \026 AIR 1921 PC 80].  Thus, the  rest of the code applies.

Although there is a divergence of opinion on this point but it is useful  to note that in a 3-Judge Bench decision of this Court in Shah Babulal  Khimji (supra), it was held to be applicable.  Therein the following questions  were raised:

"1) Whether in view of clause 15 of the Letters  Patent an appeal under section 104 of the Code of  Civil Procedure would lie? 2) Whether clause 15  of the Letters Patent supersedes Order 43 Rule 1 of  the Code of Civil Procedure? 3) Even section 104  of the CPC has no application, whether an order  refusing to grant injunction or appoint a receiver  would be a judgement within the meaning of  clause 15 of the Letters Patent?"

The answers thereto were rendered from different angles stating :

a)      Section 104 of the Code of Civil Procedure

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read with Order 43 Rule 1 expressly authorizes a  forum of appeal against orders falling under  various clauses of Order 43 Rule 1 to a Larger  Bench of a High Court without at all disturbing  interference with or overriding the Letters Patent  jurisdiction.

b)      Having regard to the provisions of section  117 and Order 49 Rule 3 of the Code of Civil  Procedure which excludes various other provisions  from the jurisdiction of the High Court, it does not  exclude Order 43 Rule 1 of the CPC.

c)      There is no inconsistency between section  104 read with Order 43 Rule 1 and the appeals  under Letters Patent, as Letters Patent in any way  does not exclude or override the application under  section 104 read with Order 43 Rule 1 which  shows that these provisions would not apply in  internal appeals within the High Court."

However, this Court in  Shah Babulal Khimji (supra) had not adverted  to various questions; but therewith we need not deal with at present.  

We may notice that the decision of the Allahabad High Court in L.  Ram Sarup (supra)  was not approved by this Court in Shah Babulal  Khimji  (supra), stating :       

"With due deference to the Hon’ble Judges we are  of the opinion that the decision of the Allahabad  High Court on this point is based on a serious  misconception of the legal position. It is true that  Section 104 was introduced by the code of 1908  and the aforesaid section, as we have already  indicated clearly saved the Letters Patent  jurisdiction of the High Court. From this, however,  it does not necessarily follow that the restriction  that there is no further appeal from the order of a  Trial Judge to a larger Bench would be  maintainable or permissible. In the first place, once  Section 104 applies and there is nothing in the  Letters Patent to restrict the application of Section  104 to the effect that even if one appeal lies to the  Single Judge, no further appeal will lie to the  Division Bench. Secondly, a perusal of Clause 15  of the Letters Patent of the Presidency High Courts  and identical clauses in other High Courts,  discloses that there is nothing to show that the  Letters Patent ever contemplated that even after  one appeal lay from the subordinate court to the  Single Judge, a second appeal would again lie to a  Division Bench of the Court. All that the Letters  Patent provides for is that where the Trial Judge  passes an order, an appeal against the judgment of  the said Trial Judge would lie to a Division Bench.  Furthermore, there is an express provision in the  Letters Patent where only in one case a further or a  second appeal could lie to a Division Bench from  an appellate order of the Trial Judge and that it is  in cases of appeals decided by a Single Judge  under Section 100 of the Code of Civil Procedure.  Such a further appeal would lie to a Division  Bench only with the leave of the court and not

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otherwise\005"

                                               (Emphasis supplied)

       Referring to Clause 15 of the Letters Patent of the Bombay High  Court, it was observed : " A perusal of the Letters Patent would clearly reveal two  essential incidents - (1) that an appeal shall lie against  any order passed by the Trial Judge to a larger Bench of  the same High Court, and (2) that where the Trial Judge  decides an appeal against a judgment or decree passed by  the district courts in the mofussil, a further appeal shall  lie only where the judge concerned declares it to be a fit  one for appeal to a Division Bench. Thus, the special law,  viz., the Letters Patent, contemplates only these two kinds  of appeals and no other. There is, therefore, no warrant  for accepting the argument of the respondent that if  Order 43 Rule 1 applies, then a further appeal would  also lie against the appellate order of the Trial Judge to  a Division Bench. As this is neither contemplated nor  borne out by the provisions of the Letters Patent  extracted above, the contention of the respondent on this  score must be overruled.  A further second appeal lying to a Division Bench from  an appellate order of the Trial Judge passed under Order  43 Rule 1 is wholly foreign to the scope and spirit of the  Letters Patent. Unfortunately, however, the Allahabad  High Court in Ram Sarup’s case [ILR 1937 All 386 : AIR  1937 All 165] refused to follow a Division Bench  decision in Piare Lal v. Madan Lal [AIR 1917 All 325 :  ILR (1917) 39 All 191] and also tried to explain away the  Full Bench decision in Muhammad Naimul Khan case  [ILR (1892) 14 All 226 : 1892 AWN 14 (FB)] where it  was clearly pointed out that in such cases no further  appeal would lie to the Division Bench under the Letters  Patent\005"

       The Court referred  with approval the decisions of  Mathura Sundari  Dassi vs. Haran Chandra Shaha [AIR 1916 Cal 361] and Lea Badin vs.  Upendra Mohan Roy Choudhury [AIR 1935 Cal. 35] to hold hat that Order  XLIII Rule 1 of the Code will also apply to the proceedings before the  original side of the High Court.   

       The views taken contrary thereto by the other High Courts had been  expressly overruled.  If the provisions of Section 104 read with Order XLIII  Rule 1 of the Code  are applicable as regard appealability of the orders in the  matters specified therein, the said provisions must be invoked in their  entirety and not in isolation.  An appeal is the right of entering a superior  court and invoking its aid and interposition to redress an error of the Court  below.  An appeal when expressly provided can be filed as a matter of right  and in no other situation.  No right of appeal can be inferred by implication  or otherwise.              In Shah Babulal Khimji (supra), the decision of the Bombay High  Court in Waman Ravji (supra) also did not find favour.  [See  para 147].

       Shah Babulal Khimji (supra) has brought about a synthesis of the  Code of Civil Procedure vis-‘-vis the Letters Patent.  It lays down that an  appeal from an order envisaged under Section 104(1) would be  maintainable, even if it is not a judgment within the meaning of Clause 15 of  the Letters Patent.  An attempt has been made therein to harmonize the Code  of Civil Procedure and the Letters Patent.  It implies that the Code shall  prevail over the Letters Patent if a harmonious construction is out of place.            

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In Shah Babulal Khimji (supra), it is stated : "Thus, a combined reading of the various provisions of  the Code of Civil Procedure referred to above lead to the  irresistible conclusion that Section 104 read with Order  43 Rule 1 clearly applies to the proceedings before the  Trial Judge of the High Court. Unfortunately, this fact  does not appear to have been noticed by any of the  decisions rendered by various High Courts."  

In Waman Ravji Kulkarni (supra), a learned Judge of the High Court  construing Section 4  vis-‘-vis Section 104 of the Code proceeded to hold  that unless an appeal under the Letters Patent is specifically excluded, sub- section (2) of Section 104 cannot be read to create a bar as regard  maintainability of the appeal under Clause 15 of the Letters Patent.  Section  4 of the Code therein, in our opinion, has not  been construed in its proper  perspective.  The said decision also does not lay down a good law.

GULAB BAI:

In Gulab Bai (supra), this Court was concerned with the provisions of  appeal specially conferred under Sections 47 and 48 of the Guardians and  Wards Act. Such provisions providing for appeal under the Special Act are  saved both by reasons of Sections 4 as also 104 of the Code.  Section 47 of  the said Act provided for an appeal to the High Court from an order made by  a court including an order passed under Section 25 (c) making or refusing to  make an order for the return of a ward to the custody of his guardian.  A  question arose as to whether a further appeal would be maintainable in terms  of Clause 18(1) of the Rajasthan High Court Ordinance, 1949.  It was held  that as no finality clause has been attached to the appellate order, such  appeal would be maintainable.  Gajendragadkar, CJ, speaking for the  Constitution Bench pointed out that the finality clause is attached only to  Section 47 of the said Act and not to the appellate order stating : "It is clear that what is made final by s. 48 is an  order made under this Act; and the context shows  that it is an order made by the trial Court under one  or the other provision of the Act. This position is  made perfectly clear if the first part of s. 48 is  examined. The finality prescribed for the order  made under this Act is subject to the provisions of  s. 47 and s. 622 of the earlier Code which  corresponds to s. 115 of the present Code. In other  words, the saving clause unambiguously means  that an order passed by the trial Court shall be  final, except in cases where an appeal is taken  against the said order under s. 47 of the Act, or the  propriety, validity, or legality of the said order is  challenged by a revision application preferred  under s. 115 of the Code. It is, therefore, essential  to bear in mind that the scope and purpose of s. 48  is to make the orders passed by the trial Court  under the relevant provisions of the Act final,  subject to the result of the appeals which may be  preferred against them, or subject to the result of  the revision applications which may be filed  against them. In other words, an order passed on  appeal under s. 47 of the Act, or an order passed in  revision under s. 115 of the Code, are, strictly,  speaking, outside the purview of the finality  prescribed for the orders passed under the Act,  plainly because they would be final by themselves  without any such provision, subject, of course, to  any appeal provided by law or by a constitutional  provision, as for instance, Art. 136. The  construction of s. 48, therefore, is that it attaches  finality to the orders passed by the trial Court

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subject to the provisions prescribed by s. 47 of the  Act, and s. 115 of the Code. That is one aspect of  the matter which is material."  

A bare perusal of the said judgment would clearly show that had such  finality clause been attached to the appellate order, this Court would have  come to the conclusion that an appeal thereagainst would also be barred.  It  is worth noticing that even in Gulab Bai (supra) no law has been laid down  to the effect that a right of further appeal can be barred only expressly and  not by necessary implication.  If a finality clause bars an appeal, the same  would be by way of necessary implication only.

Gulab Bai (supra) significantly has not been noticed in any other  subsequent decision.

As regard another aspect of the matter, namely, that the provisions of  Section 47 of the said Act are expressly saved by Section 48 and which  would mean that Section 47 will work out in an ordinary way without any  restriction imposed by Section 48; it was observed :

"\005The competence of an appeal before the  Division Bench will have to be judged by the  provisions of cl. 18 itself. Section 48 saves the  provisions of s. 47, and as we have already  indicated, considered by themselves the provisions  of s. 47 undoubtedly do not create any bar against  the competence of an appeal under cl. 18(1) of the  Ordinance where the appeal permitted by s. 47 is  heard by a learned single Judge of the High Court.  Therefore, we are satisfied that the High Court was  in error in coming to the conclusion that an appeal  before a Division Bench of the said High Court  under clause 18(1) of the Ordinance was  incompetent."

It will, thus, be safe to arrive at the  conclusion that had the finality  clause been attached to Section 48 of the said Act, no further appeal would  have been held to be maintainable.

The said decision, therefore, is an authority for the proposition that  when a finality clause is not attached to an appellate order, the right of  appeal expressly provided for by a statute cannot be held to be taken away,  but the converse may not be true.

Therein the Bench although noticed the consensus of judicial opinion  to the effect that despite finality clause contained in sub-section (2) of  Section 588 of the Code of Civil Procedure, 1877, a Letters Patent Appeal  would be maintainable but there are no discussion as regard the  interpretation of sub-section (2) of Section 104 of the Code.  It was  furthermore  not necessary for the Constitution Bench to consider the said  aspect of the matter having regard to its earlier findings that the appellate  order contained in Section 47 of the Guardians and Wards Act did not  contain any finality clause, as would appear from the following :  

               "We have referred to these decisions to  emphasize the fact that even where the relevant  provision of s.588 of the earlier Code made certain  appellate orders final, the consensus of judicial  opinion was that the said provision did not  preclude an appeal being filed under the relevant  clause of the Letters Patent of the High Court.  In  the present case, as we have already indicated, s.  48 in terms saves the provisions of s.47 of the Act  as well as those of s.115 of the Code, and that  gives full scope to an appeal  under clause 18 of

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the Ordinance which would be competent when we  deal with the question about appeals under s. 47 of  the Act considered by itself."

The Constitution Bench, therefore, did not decide the questions raised  herein nor was there any  occasion for it to do so.  No reliance, therefore, can  be placed on certain observations made therein as regard the legal position,  as it then stood.  It is well known that a judgment is an authority for what it  decides and not what may even logically be deduced  therefrom.

SOUTH ASIA INDUSTRIES PRIVATE LTD. :

In South Asia Industries Private Ltd. (supra), this Court referring to a  large number of decisions enumerated the legal position stating : "\005A statute may give a right of appeal from an order of  a tribunal or a Court to the High Court without any  limitation thereon. The appeal to the High Court will be  regulated by the practice and procedure obtaining in the  High Court. Under the rules made by the High Court in  exercise of the powers conferred on it under section 108  of the Government of India Act, 1915, an appeal under  section 39 of the Act will be heard by a single Judge.  Any judgment made by the single Judge in the said  appeal will, under cl. 10 of the Letters Patent, be subject  to an appeal to that Court. If the order made by a single  Judge is a judgment and if the appropriate Legislature  has, expressly or by necessary implication, not taken  away the right of appeal, the conclusion is inevitable that  an appeal shall lie from the judgment of a single Judge  under cl. 10 of the Letters Patent to the High Court. It  follows that, if the Act had not taken away the Letters  Patent appeal, an appeal shall certainly lie from the  judgment of the single Judge to the High Court."                                                  (Emphasis Supplied)

This Court referring to the provision contained in Section 39 of the  Delhi Rent Control Act, 1958 noticed the scheme of the statute and observed  that as finality clause has been attached therein, a further appeal would not  be entertained stating :

"\005The Act is a self-contained one and the intention of  the Legislature was to provide an exhaustive code for  disposing of the appeals arising under the Act. The  opening words of section 43 of the Act "save as  otherwise expressly provided in this Act" emphasize the  fact that the finality of the order cannot be questioned by  resorting to something outside the Act\005"

It is, therefore, also an authority for the proposition that a Letters  Patent appeal can be held to be barred by necessary implication having  regard to the scheme of the statute.

MOHINDRA SUPPLY COMPANY :

In Mohindra Supply Company (supra)  the Court upon considering the  scope of Section 39 of the Arbitration Act, 1940, held that  sub-section (2)  thereof prohibits a Second Appeal from an order passed in appeal  thereunder. It rejected the contention that despite such bar of appeal, a  Letters Patent would be maintainable.  Stating that Section 39(2) expressly  prohibits a Second Appeal from an order under Section 39(1), it  was held :

"The  two sub-sections of s. 39 are manifestly part  of a single legislative pattern.  By sub-s. (1), the  right to appeal is conferred against the specified

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orders and against no other orders; and from an  appellate order passed under sub-s.(1) no second  appeal (except an appeal to this Court) lies\005"                 

Section 39 of the Arbitration Act, 1940, it is interesting to note, does  not contain a non-obstante clause.  

Noticing that there had been a divergence of opinion as regard intra- court appeal, it was opined  :

"\005There is clear indication inherent in sub-s.(2)  that the expression "second appeal" does not mean  an appeal under s. 100 of the Code of Civil  Procedure.  To the interdict of a "second appeal",  there is an exception in favour of an appeal to this  Court; but an appeal to this Court is not a second  appeal. If the legislature intended by enacting s.  39(2) merely to prohibit appeals under s. 100 of  the Code of Civil Procedure, it was plainly  unnecessary to enact an express provision saving  appeals to this Court.  Again an appeal under s.  39(1) lies against an order superseding an award or  modifying or correcting an award, or filing or  refusing to file an arbitration agreement or staying  or refusing  to stay legal proceedings where there  is an arbitration agreement or setting aside or  refusing to set aside an award  or on an award  stated in the form of a special case.  These orders  are not decrees within the meaning of the Code of  Civil Procedure and have not the effect of decrees  under the Arbitration Act.  Section 100 of the Code  of Civil Procedure deals with appeals from  appellate decrees and not with appeals from  appellate orders.  If by enacting s.39(2) appeals  from appellate decrees were intended to be  prohibited, the provision was plainly otiose; and  unless the context or the circumstances compel the  Court will not be justified in ascribing to the  legislature an intention to enact a sterile clause.  In  that premise the conclusion is inevitable that the  expression ’second appeal’ used in s.39(2) of the  Arbitration Act means a further appeal from an  order passed in appeal under s.39(1) and not an  appeal under s.100 of the Civil Procedure Code\005"    

This Court upon further noticing that the Letters Patent is subject  to  the legislative power of the Governor-General in Council,  held :

"\005If by the express provision contained in  s.39(1), a right to appeal from a Judgment which  may otherwise be available under the Letters  Patent is restricted, there is no ground for holding  that clause (2) does not similarly restrict the  exercise of appellate power granted by the Letters  Patent.  If for reasons aforementioned the  expression "second appeal" includes an appeal  under the Letters Patent, it would be impossible to  hold that notwithstanding the express prohibition,  an appeal under the Letters Patent from an order  passed in appeal under sub-s.(1) is compeent."  

Tracing the history of the Arbitration Act vis-‘-vis the provisions of

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Section 588 of the Code of Civil Procedure, 1877 and Section 104 of the  Code, it was held that under Arbitration Act there does not exist any  provision similar to Section 4 of the Code of Civil Procedure which would  save an appeal under a special statute, opining :

       "Under the Code of 1908, the right to appeal  under the Letters Patent was saved both by s.4 and  the clause contained in s.104(1), but by the  Arbitration Act of 1940, the jurisdiction of the  Court under any other law for the time being in  force is not saved; the right of appeal can therefore  be exercised against orders in arbitration  proceedings only under s.39, and no appeal (except  an appeal to this Court) will lie from an appellate  order.

       There is no warrant for assuming that the  reservation clause in s.104 of the Code of 1908  was as contended by counsel for the respondents,  "superfluous" or that its "deletion from s.39(1) has  not made any substantial difference" : the clause  was enacted with a view to do away with the  unsettled state of the law and the cleavage of  opinion between the Allahabad High Court on the  one hand and Calcutta, Bombay and Madras High  Courts on the other on the true effect of s.588 of  the Code of Civil Procedure upon the power  conferred by the Letters Patent.  If the legislature  being cognizant of this difference of opinion prior  to the Code of 1908 and the unanimity of opinion  which resulted after the amendment, chose not to  include the reservation clause in the provisions  relating to appeals in the Arbitration Act of 1940,  the conclusion is inevitable that it was so done  with a view to restrict the right of appeal within the  strict limits defined by s.39 and to take away the  right conferred by other statutes\005"  

The Court was, thus, concerned with the saving clause contained in  Section 4 of the Code vis-‘-vis sub-section (1) of Section 104 of the Code  and not sub-section (2) thereof.

It is true that some stray observations had been made therein to the  effect that under the Code of 1908, an appeal did lie under the Letters Patent  from an order passed by a Single Judge of a Chartered High Court in an  arbitration proceedings even if the order was passed in exercise of appellate  jurisdiction, but that was so, because the power of the Court to hear appeals  under a special law for the time being in operation was expressly preserved.   Furthermore, as has been noticed in Shah Babulal Khimji (supra) that in  terms of Clause 15 of the Letters Patent a second appeal could have been  maintained only subject to leave granted by the appellate court therefor.  No  such leave has been taken in this case.  The said observation would not mean   in  absence of any detailed discussion as regard interpretation of the  provisions of the Code,  that despite bar created thereunder, an appeal would  still be maintainable under Clause 15 of the Letters Patent.

       Such observations were not only wholly unnecessary but the same did  not arise for consideration directly.  Furthermore, the questions raised herein  were not raised at the Bar nor the Bench had any occasion to consider the  same in details.  The said decision is also an authority for the proposition  that a Letters Patent Appeal can be barred by necessary implication.

RESHAM SINGH :

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The issue which is involved in these appeals was also involved  therein.  The question which arose for consideration as to whether if a right  of appeal is provided under Sub-section (1) of Section 104 of the Code  whether a further appeal is barred under Sub-section (2) thereof.  Therein,  the said question was answered in the affirmative holding:          "5. Section 104 CPC provides for an appeal from  the orders provided in Order 43 save as otherwise  expressly provided in the body of this Code or by  any law for the time being in force and from no  other orders. Sub-section (2) envisages that  "(2) No appeal shall lie from any order  passed in appeal under this Section".  6. It would, therefore, be clear that when an appeal  was filed against the order of the City Civil Court,  Bombay to the learned Single Judge under Order  43 Rule 1(r) as provided in sub-section (1) of  Section 104 by operation of sub-section (2) of  Section 104, no further appeal shall lie from any  order passed in appeal under this section\005."  

NEW KENILWORTH HOTEL (P) LTD. :          In New Kenilworth Hotel (P) Ltd. (supra) also the question which  arose for consideration was as to whether Subs-section (2) of Section 104 of  the Code bars an appeal against an order passed by the appellate court in  terms of Sub-section (1) of Section 104 thereof following Resham Singh  (supra).   The answer thereto was rendered in the affirmative.  Therein it was  noticed that Clause 10 of the  Letters Patent of the Orissa High Court was in  pari materia  with Clause  15 of the Letters Patent of the Madras High Court.   It was held : "9. 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 43, 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 43, Rule 1, since it gives a  finality as regards that Court is concerned, was  held to be a judgment within the meaning of  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 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 43, 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. v. Rupa  Chemicals [AIR 1986 Guj 156 : (1986) 27 Guj LR  101 : 1986 Guj LH 93] and Firm Chhunilal  Laxman Prasad v. Agarwal and Co. [AIR 1987 MP  172 : 1987 MPLJ 165] by the two High Courts is  correct in law. The view of the Division Bench in

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Sashikala Padhi v. Hiren Ghosh [(1991) 71 Cut LT  197] is correct in law. Sukuri Dibya case [(1990)  32 OJD 431 (Civil)] and the Birendra case [(1992)  34 OJD 473 (Civil)] are not good law.  10. It is seen that the very object of introducing  these amendments was to cut down the delay in  disposal of suits and to curtail the spate 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  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 aforementioned decisions meet  our approval.

SOME OTHER CASE LAWS :

Mr. Sundravardhan had placed reliance on  L. Ram Sarup (supra)  which has been referred to in Gulab Bai (supra) for the proposition that  when a matter comes before the High Court even on the appellate side, the  appeal from a judgment passed shall be governed by the Letters Patent.  We  do not agree with the said view and are of the opinion that the decision in  Gulab Bai (supra) must be read in the context in which it was rendered.    

In the said case, the court was concerned with the construction of sub- section (2) of Section 588 of the Code of Civil Procedure, 1877 which  provided for finality clause.  Having held that despite such finality clause, as  an appeal thereagainst in terms of  Clause 15 of the Letters Patent had not  been expressly prohibited, the same was  maintainable.   

We have noticed hereinbefore that in South Asia Industries Private  Ltd. (supra), it has clearly been held that filing of appeal may be barred by  the Legislature either expressly or by necessary implication.  

       In Chandra Kanta Sinha (supra), New Kenilworth Hotel (P) Ltd.  (supra)  was distinguished stating :      

       "12. Learned counsel for the respondents,  however, argued that clause 10 provides that an appeal  shall lie to the said High Court only from "a judgment  passed in exercise of the appellate jurisdiction not being a  judgment passed in the exercise of the appellate  jurisdiction" and as the judgment of the learned Single  Judge was passed in the appellate jurisdiction, a letters  patent appeal was not maintainable.  In our view, the  contention of the learned counsel is based on a  misreading of clause 10.  He has overlooked the vital  words, namely, "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" in the first limb  of clause 10.  If those words are also read along with the  words relied upon by the learned counsel, it becomes  clear that the appellate jurisdiction mentioned therein  refers to a second appeal under Section 100 CPC (or

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under any provision of a special Act) which is in respect  of a decree or order made in exercise of  appellate  jurisdiction in the first appeal, filed under Section 96  CPC (or under any provision of a special Act) by a court  subject to the superintendence of the High Court.  In  other words, from a judgment passed by one Judge in  second appeal, under Section 100 CPC or any other  provision of  a special Act no letters patent appeal will lie  to the High Court provided the second appeal was against  a decree or order of a District Judge or a Subordinate  Judge or any other Judge subject to the superintendence  of the High Court passed in a first appeal under Section  96 CPC or any other provision of a special Act."

It was further held  :

       "13. In New Kenilworth Hotel (P) Ltd. case  aggrieved by the order of the trial court passed under  Order 39 Rules (1) and (2), an appeal under Section  104(1) CPC read with Order 43 Rule 1(r) was filed  before the High Court which was disposed of by one  Judge of the High Court.  From the order/judgment of  one Judge, a letters patent appeal (second appeal) was  filed before the Division Bench under Clause 10 of the  Letters Patent of the Orissa High Court.  The Division  Bench of the High Court held that the letters patent  appeal was not maintainable.  Having regard to the  provision of Section 104(2), the appeal before the  Division Bench was barred.  On appeal to this Court it  was held  : (SCC p.466, para 10)

"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 104, the right of appeal provided  under clause 10 of the Letters Patent would  not be available."

Therefore, reliance on the judgment of this Court  in New Kenilworth Hotel (P) Ltd. case will be of no avail  to the respondents."

       In Subal Paul (supra), it was held :

       "46. We may notice that even in Municipal  Corporation of Brihanmumbai and Another vs. State  Bank of India [(1999) 1 SCC 123], this Court while  interpreting the provisions of Section 218-D and 217(1)  of the Bombay Municipal Corporation Act, 1888,  held  that when an appeal is in the form of second appeal  having regard to the bar contained in Section 100A of the  Code of Civil Procedure, no further appeal shall lie.  It  was observed :

"This section has been introduced to  minimize the delay in the finality of a  decision.  Prior to the enactment of the  above provision, under the letters patent, an  appeal against the decision of a Single Judge  in a second appeal  was, in certain cases,  held competent, though under Section 100  of the Code of Civil Procedure, there was  some inhibition against interference with the

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findings of fact.  The right of taking  recourse to such an appeal has now been  taken away by Section 100-A of the Code of  Civil Procedure (supra).  Since an appeal  under Section 217(1) of the Act is a first  appeal in a second forum/court and an  appeal under Section 218-D of the Act is the  second appeal in the third forum/court, no  further appeal would be competent before  the fourth forum/court in view of Section  100-A of the Code of Civil Procedure  (supra)."

       In Prataprai N. Kothari vs. John Braganza [(1999)  4 SCC 403], even in a suit for possession only not based  on title, a letters patent appeal was held to be  maintainable."              

       In this case, we are not concerned with such a situation, as sub-section  (2) of Section 104 of the Code would clearly bar such appeals.

       In Central Mine Planning and Design Institute Ltd. (supra), the  question which falls for our consideration did not fall therein.  The only  question which was raised was as to whether an order passed under Section  17-B of the Industrial Disputes Act is a judgment within the meaning of  Clause 10 of the Letters Patent of Patna High Court.   

In Madhusudan Vegetable Products Co. Ltd., Ahmedabad vs. Rupa  Chemicals Vapi and Others  [AIR 1986 Guj. 156], Majmudar, J. (as His  Lordship then was) speaking for a Division Bench of the Gujarat High Court  inter alia analyzing the provisions of Section 104 of the Code observed :

"11\005All further appeals from appellate orders  under S.104(1) read with O.43, R.1 are expressly  barred by S. 104, sub-sec. (2) and S. 105 of the  Civil P.C.  If any lower appellate Court decides a  miscellaneous appeal under O. 43, R.1, only  revision lies before High Court.  There is no  occasion for the High Court to exercise second  appellate jurisdiction against appellate orders  passed by subordinate Courts.  Second appeal lies  only against appellate decrees of subordinate  Courts as per S. 100, Civil P.C.  Hence the words  "appellate decree or order" must mean appeal  before learned single Judge of the High Court  either against appellate decree as per S. 100, Civil  P.C. or against original order of subordinate Court  under O. 43, Rule 1, Civil P.C."

Yet again in Firm Chhunilal Laxman Prasad vs. M/s Agarwal and Co.  and Others [AIR 1987 M.P. 172] , N.D. Ojha, J. (as His Lordship then was)  opined : "5. The effect of the aforesaid decision is that if an  order has been passed by a learned single Judge of  the High Court either appointing a receiver or  granting or refusing injunction under O.39 Rules 1  and 2 in some original proceedings, letters patent  appeal would lie against that order treating it to be  a judgment.  The Supreme Court, however, does  not go a step further and say that if the order  passed by the High Court was not an original  order, but had been passed in exercise of its  appellate jurisdiction u/s. 104 read with O.43 Rule  1 C.P.C., even then a letters patent appeal would  lie.  Indeed such an argument is not open on the

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clear language of sub-section (2) of S. 104 C.P.C.,  which has been held by the Supreme Court to be  applicable to a letters patent appeal.  Sub-section  (2) of Section 104 provides that no appeal shall lie  from any order passed in appeal under this  section."

The aforementioned two decisions have expressly been approved by  this Court in New Kenilworth Hotel (P) Ltd. (supra).

Law in this country, which is prevailing since 1986, has been  consistent and we do not see any reason to depart from the said view.

PRECEDENT:

       While analyzing different decisions rendered by this Court, an attempt  has been made to read the judgments as should be read under the rule of  precedents.  A decision, it is trite, should not be read as a statute.

       A decision is an authority for the questions of law determined by it.   While applying the ratio, the court may not pick out a word or a sentence  from the judgment divorced from the context in which the said question  arose for consideration.  A judgment, as is well-known, must be read in its  entirety and the observations made therein should receive consideration in  the light of the questions raised before it.  (See Haryana Financial  Corporation & Anr. v. M/s. Jagdamba Oil Mills & Anr.[JT 2002(1)SC 482],  Union of India & Ors. v. Dhanwanti Devi & Ors[(1996) 6 SCC 44], Dr.  Nalini Mahajan v. Director of Income Tax (Investigation) & Ors(2002) 257  ITR 123, State of UP & Anr. v. Synthetics and Chemicals Ltd. & Anr.  (1991) 4 SCC 139, A-One Granites v. State of U.P. & Ors. 2001 (1) AIR  SCW 848 and Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and  Others [(2003) 2 SCC 111]

       Although, decisions are galore on this point, we may refer to a recent  one in State of Gujarat and Others Vs. Akhil Gujarat Pravasi V.S.  Mahamandal and Others [AIR 2004 SC 3894] wherein this Court held:

"\005It is trite that any observation made during the  course of reasoning in a judgment should not be  read divorced from the context in which they were  used."

       It is further well-settled that a decision is not an authority for the  proposition which did not fall for its consideration.

CONCLUSION :  

       The upshot of our decision would be :

       (1)     Finality clause contained in a statute, unless attached to an  order passed in appeal, would not take away the right of appeal expressly  provided for under the special statute;  

       (2)     Letters Patent being a subordinate legislation has the force of  law but the same is subject to an Act of Parliament;  

       (3)     If an appeal is maintainable under sub-section (1) of Section  104 of the Code, no further appeal threfrom would be maintainable in terms  of sub-section (2) thereof.;

       (4)     A right of appeal being creature of a statute, it may provide for  a limited right of appeal or limiting the applicability thereof.

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(5) Clause 15 of the Letters Patent cannot override the bar created  under Section 104 of the Code.   Section 104 (1) of the Code must be read  with sub-section (2) of Section 104; and by reason thereof saving clause in  relation to the Letters Patent would not be attracted.  An attempt should be  made to uphold a right of appeal only on harmonious construction of  Sections 4, 104 and other provisions of the Code.

(6)     However, when an appeal is provided for under a Special Act,  Section 104 of the Code shall have no application in relation thereto as it  merely recognizes such right but does not provide for a right of appeal.

       (7)     If a higher status is given to a Letters Patent over a law passed  by the Parliament including the Code of Civil Procedure, the same would  run contrary to the history of the Letters Patent as also the Parliamentary  Acts.  

       (8)     The judgment of this Court must be read as a whole and the  ratio therefrom is required to be culled out from reading the same in its  entirety and not only a part of it;              In view of  our foregoing findings,  it is not necessary to consider the  other submissions made at the Bar.

       For the reasons aforementioned, there is no merit in these appeals  which are dismissed accordingly.  No costs.