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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. N. Variava & B. P. Singh & H. K. Sema & S.B. Sinha

JUDGMENT: JUDGMENT W I T H

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

Delivered by S.B. SINHA, J  S. N. VARIAVA, J,

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  

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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  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

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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].

       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,

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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  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

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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  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."

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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  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.

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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  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

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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  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.

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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  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  

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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.

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

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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],  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.  

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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  (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

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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  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?"

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The answers thereto were rendered from different angles stating :

a)      Section 104 of the Code of Civil Procedure  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

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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  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

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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.             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

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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  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

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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  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 :

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"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  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

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passed in appeal under sub-s.(1) is compeent."  

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

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that a Letters Patent Appeal can be barred by necessary implication.

RESHAM SINGH :

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

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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  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

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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  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

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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  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

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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  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

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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.  

(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.

============================================================= S. N. VARIAVA, J.

               We have had the benefit of reading the Judgment of  Brother Sinha, J. With the greatest of respect to him we are  unable to agree with his view for the following reasons. Facts  have been set out in detail by Brother Sinha, J. and need not be  repeated here except to state that this Appeal is against the  Judgment of the High Court of Madras dated 22nd August, 1997,  by which it has been held that a Letters Patent Appeal is not  maintainable against an Order passed by a single Judge of the  High Court sitting in Appellate Jurisdiction.   

               Because of the importance of the question involved,  this Court by an Order dated 9th August, 2001 referred the  matter to a larger Bench.  The Order reads as follows:

       "Against an application filed before the  executing court for setting aside the court auction  which was dismissed, an appeal was filed before the  High Court.  On the dismissal of the same by the  Single Judge, a letters patent appeal was filed.  A  Full Bench relying upon a decision of this Court in  New Kenilworth Hotel (P) Ltd. vs. Orissa State  Financial Corporation and Others, 1997 (3) SCC 462  came to the conclusion that in view of the provisions  of Section 104(2), C.P.C., appeal to the Division  Bench was not maintainable.  To the same effect are  two other decisions of this Court in Resham Singh  Pyara Singh vs. Abdul Sattar [1996 (1) SCC 49] and   Vinita M. Khanolkar vs. Pragna M. Pai and Others,  1998 (1) SCC 500.

       Learned senior counsel for the appellant has

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drawn our attention to a decision of the Constitution  Bench in Gulab Bai and Anr. vs. Puniya, 1966 (2)  SCR 102 and has contended that the observations in  the said judgment clearly support his contention that  by virtue of provisions similar to Clause 15 of the  Letters Patent an appeal could be filed against he  judgment of the Single Judge.

       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."

               The Chief Justice has since placed this matter before  a Constitution Bench.

               Before us, it has not been disputed that if Section  104 of the Civil Procedure Code did not provide a bar, then in  this case a Letters Patent Appeal would be maintainable. It is  also not disputed that at the relevant time Section 100A C.P.C.  did not bar such an Appeal in this case.  

               In order to decide whether Section 104(2) C.P.C.  would bar a Letters Patent Appeal, one has to first notice the  history and the view taken by various Courts in India on this  aspect.  In the Civil Procedure Codes of 1877 and 1882 the  equivalent to Section 104 read with Order 43 Rule I was Section  588.  It reads as follows:

"588 \026 An appeal shall lie from the following orders  under this Code and from no other such orders:- \005\005\005\005\005\005\005\005\005\005\005.. The orders passed in appeals under this section shall  be final"

To be noted that Section 588 did not contain words to the effect  "under a law for the time being in force". However, Section 588  did provide that "an appeal shall lie from the following orders  and no other such orders". It also provided that "orders passed

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in Appeal under that Section shall be final".    These words have  the same meaning and effect as the words "no Appeal shall lie  from any Order passed in Appeal under this Section".   Section  588 by giving a finality to orders passed under that Section  precluded further appeals.  The question was whether Section  588 also barred a Letters Patent Appeal.

       There was a divergence of opinion amongst the High  Courts on this point. This question then came up before the Privy  Council in the case of Hurrish Chunder Chowdhry vs. Kali  Sundari Debia reported in 10 I.A. Pg. 4.   The Privy Council held  as follows: "It only remains to observe that their Lordships do  not think that section 588 of Act X of 1877, which  has the effect of restricting certain appeals, applies  to such a case as this, where the appeal is from one  of the Judges of the Court to the Full Court."  

These observations of the Privy Council again led to a conflict of  decisions amongst various High Courts. The Bombay, Calcutta  and Madras High Courts held that Section 588 did not take away  the right of Appeal given under the Letters Patent.  On the other  hand, the Allahabad High Court took a different view and held  that a Letters Patent Appeal was barred under Section 588  C.P.C.    In view of this conflict of views the Legislature stepped  in and amended the law.  It introduced Section 4 and also  introduced Section 104 C.P.C., which read as follows:  "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. (2) In particular and without prejudice to the  generality of the proposition contained in sub-section  (1), nothing in this Code shall be deemed to limit or  otherwise affect any remedy which a landholder or  landlord may have under any law for the time being  in force for the recovery of rent of agricultural land  from the produce of such land.

104. Orders from which appeal lies.- (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 -  \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 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." To be immediately noted that now the Legislature provides that  the provision of this Code will not affect or limit special law  unless specifically excluded.  The Legislature also simultaneously  saves, in Section 104(1), appeals under "any law for the time  being in force".  These would include Letters Patent Appeals.    After this amendment, even the Allahabad High Court changed  its view.   In the case of L. Ram Sarup vs. Mt. Kaniz Ummehani  reported in AIR 1937 Allahabad 165 the earlier view was noted  and it was thereafter observed as follows: "There is however one material distinction between  the provisions of the old Code and those of the new

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Code.    In the Code of 1882 there was no exemption  as regards any special law that may be in force for  the time being and the Code of Civil Procedure,  except as regards certain enactments mentioned in  S. 4 and other similar sections, would supersede all  such laws.  In Cl.35 of the Letters Patent, there was  a clear provision that the Letters Patents are subject  to the legislative powers of the Governor-General in  Council.  It was accordingly thought that the Code of  Civil Procedure would prevail against the provisions  of the Letters Patent.  In the new Code of 1908 there  is a special provision in S. 4 to the effect that:         In the absence of any specified 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.         It follows that unless there is any specific  provision to the contrary in this Code of Civil  Procedure, it cannot affect any special law or special  jurisdiction or power which is conferred on the High  Court.  The Letters Patent undoubtedly confers such  special jurisdiction and power.  It would therefore  follow that the provisions of the Letters Patent are  saved by virtue of S. 4, unless there is specific  provision to the contrary.  We do not find any  specific provision in S. 104 showing that that section  is intended to apply to Letters Patent appeals as  well.  The opinion expressed by the Division Bench in  Piare Lal’s case [AIR 1917 All. 325] has not been  followed in other High Courts.  It seems to us that it  is not necessary to refer this point to a Full Bench  because of one important circumstance.  At the time  when the case of Piare Lal was decided the new Code  of Civil Procedure had come into force and its  provisions could be considered by the Bench to  supersede the provisions of the Letters Patent.   Thereafter Cl. 10, Letters Patent, was amended in  1929 when a right of appeal has been allowed from  every judgment of a Single Judge where leave is  granted.   At this latest provision in the Letters  Patent has not been superseded by any provision of  the Code of Civil Procedure, we think that it must  prevail.

       It may further be pointed out that Sec. 104(1),  C.P.C., itself provides "save as otherwise expressly  provided. . . by any law for the time being in force."   Accordingly the prohibition contained in that sub- section that an appeal shall not lie from any other  order, would not apply to a case where an appeal is  provided for under the Letters Patent.  It may  however be conceded that this saving clause does  not occur in sub-s. (2), S. 104.  But under the  corresponding S. 588 of the old Code where the  words were "orders passed in appeal under this  section shall be final," their Lordships of the Privy  Council in 9 Cal 482, at p. 492, observed that S.  588, which has the effect of restricting certain  appeals, does not apply to a case where the appeal  is from one of the Judges of the High Court to the  full Court.  Obviously S. 104(2) was intended to  apply to appeals where allowable under the Code of

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Civil Procedure.  In any case S. 104(2) does not  contain any express provision which would suggest  that the provisions of the Letters Patent have been  abrogated.  We accordingly hold that under Cl. 10,  Letters Patent, an appeal lies from the order of a  Single Judge passed in appeal." Thus now all High Courts in India were unanimously of the view  that Section 104 C.P.C. did not prohibit a Letters Patent Appeal.  At this stage it must be mentioned that the abovementioned  authority of the Allahabad High Court has been overruled by this  Court in Shah Babulal Khimji vs. Jayaben D. Kania reported in  (1981) 4 SCC 8. But, as is set out in greater details hereafter,  the view that a Letters Patent Appeal is maintainable is  specifically approved. The overruling is on another aspect set out  hereinafter.         In National Sewing Thread Co. Ltd., Chidambaram vs.  James Chadwick and Bros. Ltd. (AIR 1953 SC 357) the question  arose whether a Letters Patent appeal under Clause 15 of the  Letters Patent of the Bombay High Court was maintainable  against the Judgment of a single Judge exercising appellate  jurisdiction under Section 76 of the Trade Marks Act, 1940.    Holding that such an appeal was maintainable, this Court  observed: "Section 76, Trade Marks Act confers a right of  appeal to the High Court and says nothing more  about it.  That being so, the High Court being seized  as such of the appellate jurisdiction conferred by  S.76 it has to exercise that jurisdiction in the same  manner as it exercises its other appellate jurisdiction  and when such jurisdiction is exercised by a single  Judge, his judgment becomes subject to appeal  under Cl. 15 of the Letters Patent there being  nothing to the contrary in the Trade Marks Act."

Referring to Clause 44 of the Letters Patent, it was held  that the provisions of the Letters Patent were subject to the  legislative powers of the Governor General in Legislative Council,  and therefore, in the present day context, subject to the  legislative power of the appropriate legislature.  But this Court  found nothing in the Trade Marks Act restricting the right of  appeal under Clause 15 of the Letters Patent.          This question was also considered by a four Judges Bench  of this Court in the case of Union of India vs. Mahindra Supply  Company reported in (1962) 3 SCR 497.  In this case, a dispute  between the parties was referred to Arbitration.  The Arbitrator  gave an award.  An application was made for setting aside the  award. That application was rejected.  Against that order an  Appeal was preferred to the High Court under Section 39(1) of  the Indian Arbitration Act, 1940.  A single Judge of the High  Court allowed the Appeal and set aside the award.  Thereupon a  Letters Patent Appeal was filed.  The question was whether a  Letters Patent Appeal was barred.  Section 39 of the Indian  Arbitration Act reads as follows:         "(1) An appeal shall lie from the following  orders passed under this Act (and from no others) to  the Court authorized by law to hear appeals from  original decrees of the Court passing the order: An order \026 (i)     superceding an arbitration; (ii)    on an award stated in the form  of a special case; (iii)   modifying or correcting a  award; (iv)    filing or refusing to file an  arbitration agreement

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(v)     staying or refusing to stay legal  proceedings where there is an  arbitration agreement; (vi)    setting aside or refusing to set  aside an award: Provided that the provisions of this section  shall not apply to any order passed by a Small Cause  Court.         (2) No second appeal shall lie from an order  passed in appeal under this section, but nothing in  this section shall affect or take away any right to  appeal to the Supreme Court." It is thus to be seen that Section 39 specifically barred a second  Appeal. Also to be noticed that in Section 39 there is no saving  clause similar to that in Section 104(1) C.P.C.   Further, in the  Arbitration Act there is no provision similar to Section 4 C.P.C.    It was submitted that, even though Section 39 barred a second  Appeal, an analogy should be taken from Section 104 C.P.C. and  it must be held that a Letters Patent Appeal was maintainable.   In considering this submission the conflict of opinions amongst  the various High Courts regarding maintainability of a Letters  Patent Appeal, in spite of Section 104 C.P.C., was set out and  this Court then held as follows:         "The legislature in this state of affairs  intervened, and in the Code of 1908 incorporated s.  4 which by the first sub-section provided:         "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:; and enacted in s. 104(1) that an appeal shall be  from the orders set out therein and save as  otherwise expressly provided, in the body of the  Code or by any law for the time being in force, from  no other orders.  The legislature also expressly  provided that "no appeal shall lie from any order  passed in appeal under this section."         Section 105 was substantially in the same  terms as s. 591 of the earlier Code.         The intention of the legislature in enacting sub- s. (1) of s. 104 is clear: the right to appeal conferred  by any other law for the time being in force is  expressly preserved.  This intention is emphasized  by s. 4 which provides that in the absence of any  specific provision to the contrary, nothing in the  Code is intended to limit or otherwise affect any  special jurisdiction or power conferred by or under  any other law for the time being in force.  The right  to appeal against judgments (which did not amount  to decrees) under the Letters Patent, was therefore  not affected by s. 104(1) of the Code of Civil  Procedure, 1908." Thus a four Judges Bench of this Court, as early in 1962,  recognized that the Legislature had now specifically saved a  Letters Patent Appeal.   This Court then went on to hold that  Section 4 C.P.C. provided as follows: "By this clause, a right to appeal except in the cases  specified, from one Judge of the High Court to a  Division Bench is expressly granted.  But the Letters  Patent are declared by Cl. 37 subject to the  legislative power of the Governor-General in Council  and also of the Governor-in-Council under the

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Government of India Act, 1915, and may in all  respects be amended or altered in exercise of  legislative authority.  Under S. 39(1), an appeal lies  from the orders specified in that sub-section and  from no others.  The legislature has plainly  expressed itself that the right of appeal against  orders passed under the Arbitration Act may be  exercised only in respect of certain orders.  The right  to appeal against other orders is expressly taken  away.  If 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  cl.(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 competent."

This Court however noticed that in the Arbitration Act,  there was no provision similar to Section 4 of the Code of Civil  Procedure which preserved powers reserved to Courts under  special statutes.  Under the Code of Civil Procedure, the right to  appeal under the Letters Patent is saved both by Section 4 and  the clause contained in Section 104(1), but by the Arbitration  Act, 1940, the jurisdiction of the Courts under any other law for  the time being in force is not saved.  The right of appeal could  therefore be exercised against orders in arbitration proceedings  only under Section 39, and no appeal lay from the appellate  order (except an appeal to this Court).   The provisions in the  Letters Patent providing for appeal, in so far as they related to  orders passed in Arbitration proceedings, were held to be subject  to the provisions of Section 39(1) and (2) of the Arbitration Act,  as the same is a self contained Code relating to arbitration. The aforesaid two decisions were noticed in South Asia  Industries (P) Ltd. vs. S.B. Sarup Singh & Ors. (AIR 1965 SC  1442).  This Court was called upon to interpret the provisions of  Sections 39 and 43 of the Delhi Rent Control Act, 1958 with a  view to answer the question whether an appeal was competent  under Clause 10 of the Letters Patent of the High Court of  Lahore against the judgment of a single Judge in a second  appeal under Section 39 of the aforesaid Act. Section 39 provided an appeal to the High Court against  the judgment of the Tribunal only on a substantial question of  law.  Section 43 read as under: "Save as otherwise expressly provided under this  Act, every order made by the Controller or an order  passed an appeal under this Act shall be final and  shall not be called in question in any original suit,  application or execution proceeding."

It was not even disputed before this Court that the right of  appeal conferred by Clause 10 of the Letters Patent could be  taken away by law made by the appropriate legislature.  Under  the Rules an appeal under Section 39 was to be heard by a  Single Judge, and under Clause 10 of the Letters Patent an  appeal to the High Court lay against the judgment of a single  Judge.  This Court held that unless the right of appeal was taken  away by the appropriate legislature either expressly or by  necessary implication, an appeal was competent under Clause 10  against the judgment of the single Judge to the High Court.   However, on an interpretation of Section 43 of the Act, this

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Court held that the expression "final" put an end to a further  appeal and the section imposed a total bar. The question whether a Letters Patent Appeal would be  barred was considered by a Constitution Bench of this Court in  the case of Gulab Bai vs. Puniya reported in (1966) 2 SCR 102.   In this case, an application under Section 25 of the Guardians  and Wards Act was rejected by a Civil Court.  This decision was  reversed in Appeal by a single Judge of the Rajasthan High  Court.  Against the decision of the single Judge an Appeal under  Clause 18 of Rajasthan High Court Ordinance was filed.  The  question was whether such an Appeal was maintainable.  It was  submitted that such an Appeal was not maintainable by virtue of  Sections 47 and 48 of the Guardians and Wards Act.  Sections 47  and 48 read as follows: "47. Orders appealable.- An appeal shall lie  to the High Court from an order made by a Court,- (a)     under section 7, appointing or declaring  or refusing to appoint or declare a guardian; or (b) under section 9, sub-section (3), returning  an application; or (c) under section 25, making or refusing to  make an order for the return of a ward to the  custody of his guardian; or (d) under section 26, refusing leave for the  removal of a ward from the limits of the jurisdiction  of the Court, or imposing conditions with respect  thereto; or (e) under section 28 or section 29, refusing  permission to a guardian to do an act referred to in  the section; or (f) under section 32, defining, restricting or  extending the powers of a guardian; or (g) under section 39, removing a guardian; or (h) under section 40, refusing to discharge a  guardian; or (i) under section 43, regulating the conduct or  proceedings of a guardian or settling a matter in  difference between joint guardians, or enforcing the  order; or (j) under section 44 or section 45, imposing a  penalty.

48. Finality of other orders.- Save as  provided by the last foregoing section and section  622 of the Code of Civil Procedure, 1882, an order  made under this Act shall be final, and shall not be  liable to be contested by suit or otherwise." Thus Section 47 permitted "an appeal" to the High Court whilst  Section 48 gave a finality. The Constitution Bench, inter alia,  held as follows: "Before dealing with this point, two relevant  facts ought to be mentioned. The Act was extended  to Rajasthan by the Part B States (Laws) Act, 1951  (Act III of 1951) on the 23rd February; 1951; but  before the Act was thus extended to Rajasthan, the  Ordinance had already been promulgated. Clause  18(1) of the Ordinance provides, inter alia, that an  appeal shall lie to the High Court from the Judgment  of one Judge of the High Court; it accepts from the  purview of this provision certain other judgments  with which we are not concerned. It is common  ground that the judgment pronounced by the learned  single Judge of the High Court on the appeal  preferred by the respondent before the High Court,  does not fall within the category of the exceptions

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provided by clause 18(1) of the ordinance; so that if  the question about the competence of the appeal  preferred by the appellants before the Division Bench  of the High Court had fallen to be considered solely  by reference to clause 18(1), the answer to the point  raised by the appellants before us would have to be  given in their favour. The High Court has, however,  held that the result of reading ss. 47 and 48 together  is to make the present appeal under clause 18(1) of  the Ordinance incompetent. The question arises  before us is: is this view of the High Court right?" This Court then considered the effect of Sections 47 and 48 of  the Guardians and Wards Act and held as follows: "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 case 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 appeal 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.17 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  provisions, 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 subject to the provisions  prescribed by S.47 of the Act, and S.115 of the    Code." Thus even though Section 48 provided for a finality it still saved  appeals permitted by Section 47 and revisions under Section 622  of the then Civil Procedure Code (Section 115 of the present Civil  Procedure Code).  This Court then went on to hold as follows: "The question as to whether an appeal  permitted by the relevant clause of the Letters  Patent of a High Court can be taken away by  implication, had been considered in relation to the  provisions of s. 588 of the Codes of Civil Procedure  of 1877 and 1882. The first part of the said section  had provided for an appeal from the orders specified  by clauses (1) to (29) thereof, and the latter part of  the said section had laid down that the orders passed  in appeals under this section shall be final. Before  the enactment of the present Code, High Courts in  India had occasion to consider whether the provision  as to the finality of the appellate orders prescribed  by s. 588 precluded an appeal under the relevant  clauses of the Letters Patent of different High Courts.  There was a conflict of decisions on this point. When  the matter was raised before the Privy Council in  Hurrish Chunder Chowdhry v. Kali Sundari Debia (10  I.A. 4 at p. 17.); the Privy Council thus tersely

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expressed its conclusion:  "It only remains to observe that their  Lordships do not think that section 588  of Act X of 1877, which has the effect of  restricting certain appeals, applies to  such a case as this, where the appeal is  from one of the Judges of the Court to  the Full Court".  Basing themselves on these observations, the High  Courts of Calcutta, Madras, and Bombay had held  that s. 588 did not take away the right of appeal  given by clause 15 of the Letters Patent, vide  Toolsee Money Dassee & Others v. Sudevi Dassee &  Others ((1899) 26 Cal. 361.), Sabhapathi Chetti and  others v. Narayanasami Chetti ((1902) 25 Mad.  555.), and The Secretary of State for India in Council  v. Jehangir Maneckji Cursetji ((1902) 4 Bom. L.R.  342.) respectively. On the other hand, the Allahabad  High Court took a different view, vide Banno Bibi and  others v. Mehdi Husain and Others ((1889) 11 Alld.  375.), and Muhammad Naim-ul-Lah Khan v. Ihsan- Ullah Khan ((1892) 14 Alld. 226 (F.B.)). Ultimately,  when the present Code was enacted, s. 104 took the  place of s. 588 of the earlier Code. Section 104(1)  provides that 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. It will be  noticed that the saving clause which refers to the  provisions of the Code, or to the provisions of any  law for the time being in force, gives effect to the  view taken by the Calcutta, Madras and Bombay  High Courts. In fact, later, the Allahabad High Court  itself has accepted the same view in L. Ram Sarup v.  Mt. Kaniz Ummehani (A.I.R. 1937 Alld. 165.)." The above observations are in context of the matter before it.  The Constitution Bench was considering whether Letters Patent  Appeals can be barred. The observations were necessitated and  have been made to emphasize that Letters Patent cannot be  excluded by implication.  This is clear from the following  observations:         "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 provisions did not preclude an  appeal being filed under the relevant clause of the  Letters patent of the High Court"  Thus, a Constitution Bench of this Court has held that the words  "under any law for the time being in force" in Section 104(1)  saves Letters Patent Appeals.  This decision is binding on this  Court.         Faced with the situation it was submitted that the above  observations have been made only in the context of Sections 47  and 48 of the Guardians and Wards Act. It was submitted that  therefore these observations cannot be applied to a case where  an Appeal is under Section 104 itself.  This argument overlooks  sub-clause (1) of Section 104 C.P.C. which now categorically  saves Appeals under any law for the time being in force. Thus if  any other law for the time being in force permits an appeal the  same would be maintainable irrespective of Section 104(2)  C.P.C. As stated above, this would include a Letters Patent  Appeal.  Also, the observations quoted above are not in the  context of Sections 47 and 48 of the Guardians and Wards Act,  but in the context of whether a Letters Patent Appeal can be

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barred.  That was the question before the Court. The  Constitution Bench was considering whether a Letters Patent  Appeal was maintainable.  It was then submitted that this  authority does not take into consideration and does not refer to  sub-clause (2) of Section 104. It was submitted that as sub- clause (2) of Section 104 was not considered a fresh look is  required. Once it is noted that Section 104(1) saves such  Appeals there is no need to refer to or mention Section 104(2).   Section 104(2) cannot lay down anything contrary to Section  104(1). To be remembered that Legislature has now put in the  saving clause in order to give effect to the Bombay, Madras and  Calcutta views. If an interpretation, as sought to be given by Mr.  Vaidyanathan, is accepted then there would be a conflict  between sub-clause (1) and sub-clause (2) of Section 104.  Sub- clause (1) would save/permit a Letters Patent Appeal whereas  sub-clause (2), on this interpretation, would bar it.  In our view,  there is no such conflict.  As seen above, Section 104(1)  specifically saves a Letters Patent Appeal.  Sub-clause (2) can  thus only apply to such appeals as are not saved by sub-clause  (1). In other words sub-clause 2 of Section 104 can have no  application to appeals saved by Section 104(1).  Also it is well  established rule of interpretation that if one interpretation leads  to a conflict whereas another interpretation leads to a  harmonious reading of the Section, then an interpretation which  leads to a harmonious reading must be adopted.  In the guise of  giving a purposive interpretation one cannot interpret a Section  in a manner which would lead to a conflict between two sub- sections of the same Section. We clarify that, as stated above,  there is no conflict, but if the interpretation, suggested by Mr.  Vaidyanathan, were to be accepted then there would clearly be a  conflict. The only way a conflict can be avoided is to hold that  sub-clause (2) only bars such Appeals as are not saved by sub- clause (1) of Section 104.  In the case of Shah Babulal Khimji (supra) a suit for  specific performance was filed. Interim reliefs of appointment of  Court Receiver and injunction were refused by a single Judge of  the High Court. The Appeal preferred before the Division Bench  was dismissed as not maintainable on the ground that the  impugned Order of the Single Judge was not a Judgment as  contemplated by Clause 15 of the Letters Patent of the High  Court. It was also held that Section 104 read with Order 43 Rule  1 only applied to appeals from Subordinate Courts to the High  Court.   

Thus in Shah Babulal Khimji’s case (supra) this Court was  concerned with an order passed by a single Judge on the original  side of the High Court, which, if it amounted to a judgment, was  admittedly appealable under Clause 15 of the Letters Patent.   The only question, therefore, which arose before this Court was  whether the order of the learned single Judge refusing to grant  an injunction or appoint a receiver on the Interlocutory  Application of the appellant was a judgment, and consequently  whether an appeal against the order of the learned single Judge  to the Division Bench of the High Court was competent and  maintainable under Clause 15 of the Letters Patent. This Court  took the view that the word ’judgment’ in the Letters Patent  should receive a much wider and more liberal interpretation than  the word ’judgment’ used in the Code of Civil Procedure. It was  held that the word ’judgment’ has undoubtedly a concept of  finality in a broader and not a narrower sense.  Their Lordships  came to the conclusion that the order passed by a single Judge  on the original side refusing to appoint a receiver and grant an  injunction amounted to a judgment and was therefore  appealable under Clause 15 of the Letters Patent.   Though the question did not directly arise for

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consideration, in the Judgment of Fazal Ali, J. there is a  discussion on the interplay of Section 104 and Letters Patent.   The relevant portions read as follows: "15. We would first deal with the point relating  to the applicability of Section 104 read with Order 43  Rule 1 of the Code of 1908 because it seems to us  that the arguments of Mr. Sorabjee on this score are  well-founded and must prevail. Moreover, some of  the decisions of this Court, those of the Privy Council  and other High Courts support the propositions  adumbrated by Mr. Sorabjee.  16. In order, however, to appreciate the  applicability of Section 104 read with Order 43 Rule  1, it may be necessary to examine some important  provisions of the Code of Civil Procedure as also the  previous history which led to the enactment of  Section 104 by the Code of 1908. It appears that  prior to the Code of 1908 in the earlier Code of Civil  Procedure there were two kinds of appeals to the  High Court : (1) appeals against judgments and  decrees of the Trial Judge, and (2) appeals against  orders, either interlocutory or quasi-final, passed by  the court during the pendency of the suit or  proceedings. In the Civil Procedure Code of 1877 the  section corresponding to Order 43 Rule 1 of the Code  of 1908 was Section 588 which provided for  appealable orders under clauses (a) to (t). Section  588 of the Code of 1877 provided that an appeal  from any order specified in Section 588 shall lie to  the High Court or when an appeal from any other  order is allowed by the Chapter it would lie to the  court to which an appeal would lie from the decree in  the suit in respect of which such order was made or  when such order is passed by a court other than the  High Court, then to the High Court. A perusal of  Sections 588 and 589 of the Code of 1877 would  clearly show that the statute made no distinction  between appeals to the High Courts from the district  courts in the mofussils or internal appeals to the  High Courts under the Letters Patent. Section 591  clearly provided that except the orders mentioned in  Section 588 no further appeal could lie from any  order passed by any court in exercise of its original  or appellate jurisdiction. Section 591 may be  extracted thus:  591. No other appeal from orders; but  error therein may be set forth in memorandum  of appeal against decree. - Except as provided  in this chapter, no appeal shall lie from any  order passed by any court in the exercise of its  original or appellate jurisdiction but if any  decree be appealed against, any error, defect  or irregularity in any such order, affecting the  decision of the case, may be set forth as a  ground of objection in the memorandum of  appeal.  17. In other words, the position was that while  the statute provided only for appeals against orders,  all other appeals could only be against a decree  passed by the court concerned. The statute,  therefore, did not contemplate any other appeal  except those mentioned in Sections 588 and 591.  18. The Code of 1877 was later on replaced by  the Code of 1882 but the provisions remained the  same. In view of the rather vague and uncertain

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nature of the provisions of Sections 588 to 591 a  serious controversy arose between the various High  Courts regarding the interpretation of Section 588.  The Bombay and Madras High Courts held that under  Clause 15 of the Letters Patent of the said High  Courts, an appeal could lie only from orders passed  under Section 588 and not even under the Letters  Patent. In Sonba’i v. Ahmedbha’i Habibha’i [(1872) 9  Bom HCR 398] a Full Bench of the Bombay High  Court held that under Clause 15 of the Letters Patent  an appeal to the High Court from an interlocutory  order made by one of the Judges lies only in those  cases in which an appeal was allowed under the  Code of Civil Procedure, that is to say, under Section  588 and 591 of the Code of 1877. The Madras High  Court in Rajgopal (In re L.P.A. No. 8 of 1886 [ILR 9  Mad 447]) took the same view. Then came the  decision of the Privy Council in the case of Hurrish  Chunder Chowdry v. Kali Sundari Debia [10 IA 4 :  ILR (1883) 9 Cal 482] which while considering  Section 588 made the following observations :  It only remains to observe that their  Lordships do not think that Section 588 of Act  X of 1877, which has the effect of restricting  certain appeals is from one of the Judges of  the Court to the Full Court.  This judgment gave rise to a serious conflict of  opinions in the High Courts in India. The High Courts  of Calcutta, Bombay and Madras held that in view of  the decision of the Privy Council in the aforesaid  case, even though an order may not have been  appealable under Section 588 it could be appealable  provided it was a judgment within the meaning of  Clause 15 of the Letters Patent of the respective  High Courts (Toolsee Money Dassee v. Sudevi  Dassee [ILR (1899) 26 Cal 361]; Secretary of State  v. Jehangir [(1902) 4 Bom LR 342]; Chappan v.  Moidin Kutti [ILR (1899) 22 Mad 68]). However, the  Allahabad High Court in Banno Bibi v. Mehdi Husain  [ILR (1889) 11 All 375] held that if an order was not  appealable under Sections 588 and 591 of the Code  of 1877 it could not be appealable against even  under the Letters Patent of the High Court. This view  was affirmed by a later decision of the same High  Court in Muhammad Naim-ul-Lah Khan v. Ihsan-ul- Lah Khan [ILR (1892) 14 All 226 : 1892 AWN 14  (FB)].  19. With due respect we would like to point out  that the pointed and terse observations of the Privy  Council did not leave any room for any doubt or  speculation in the matter. While construing Section  588, the Judicial Committee in Hurrish Chunder  Chowdry’s case [10 IA 4 : ILR (1883) 9 Cal 482] had  made it clear that appeals would lie under Section  588 to the High Court and the section did not contain  any restriction to the effect that appeal against the  orders of the Trial Judge mentioned in Section 588  would not lie to a larger Bench of the High Court. In  other words, the Privy Council intended to lay down  clearly that Section 588 did not affect nor was it  inconsistent with the provisions of the Letters Patent  and hence those orders of the Trial Judge which fell  beyond Section 588 could be appealable to a larger  Bench under the Letters Patent if those orders  amounted to judgment within the meaning of Clause

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15 of the Letters Patent. Therefore, the views taken  by the Calcutta, Bombay and Madras High Courts,  referred to above, were undoubtedly correct. At any  rate, since a fresh controversy had arisen, the  legislature stepped in to settle the controversy by  enacting the new Section 104 in the Code of 1908.  Section 104 made it clear that appeals against  orders mentioned in Order 43 Rule 1 were not in any  way inconsistent with the Letters Patent and merely  provided an additional remedy by allowing appeals  against miscellaneous orders passed by the Trial  Judge to a larger Bench. In other words, the  legislature gave full statutory effect to the views of  the Calcutta, Bombay and Madras High Courts.  Even  after the introduction of Section 104, the conflict  between the various High Courts still continued as to  whether or not Section 104 would apply to internal  appeals in the High Court. That is the question,  which we shall now discuss."                                                                                          (emphasis supplied). The Court then went on to consider whether Section 104 applied  to internal appeals in the High Court. The Court considered  various provisions to conclude that Section 104 applied even to  internal appeals in the High Court. The entire discussion is  lengthy and not relevant for our purposes. But during the course  of that discussion at a number of places the interplay of Letters  Patent and Section 104 was considered. To that extent, the  observations are relevant for our purpose and are accordingly  set out: "A bare perusal of this section would clearly  reveal that excepting Revenue Courts all other civil  courts would normally be governed by the provisions  of the Code of Civil Procedure in the matter of  procedure. Section 4(1) of the Code of 1908 which is  a saving provision clearly provides that in the  absence of any specific provision to the contrary the  provisions of the Code does not limit or affect any  special or local law. Thus, the test contained in  Section 4 is not applicable in the instant case  because even if the Letters Patent of the High Court  be deemed to be a special law as contemplated by  Section 4, the provisions of Section 104 do not seek  to limit or affect the provisions of the Letters  Patent."  \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005  28. We find ourselves in complete agreement  with the arguments of Mr. Sorabjee that in the  instant case Section 104 read with Order 43 Rule 1  does not in any way abridge, interfere with or curb  the powers conferred on the Trial Judge by Clause 15  of the Letters Patent. What Section 104 read with  Order 43 Rule 1 does is merely to give an additional  remedy by way of an appeal from the orders of the  Trial Judge to a larger Bench."  \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. "30. We have already shown that a perusal of  these observations leaves no room for doubt that the  Privy Council clearly held that Section 588  undoubtedly applied to appeal from one of the  Judges of the High Court to the Full Court, which  really now means the Division Bench constituted  under the Rules. In spite of the clear exposition of  the law on the subject by the Privy Council it is  rather unfortunate that some High Courts have  either misinterpreted these observations or

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explained them away or used them for holding that  Section 588 does not apply to High Courts. We shall  deal with those judgments and point out that the  view taken by the High Courts concerned is not at all  borne out by the ratio decidendi of the Privy Council.  So far as the applicability of Section 588 to  proceedings in the High Courts is concerned, in a  later decision the Privy Council reiterated its view in  unmistakable terms. In Mt. Sabitri Thakurain v. Savi  [AIR 1921 PC 80], their Lordships observed as  follows:  Section (sic Clause) 15 of the Letters  Patent is such a law, and what it expressly  provides, namely an appeal to the High Court’s  appellate jurisdiction from a decree of the High  Court in its original ordinary jurisdiction, is  thereby saved. Thus regulations duly made by  Orders and Rules under the Code of Civil  Procedure, 1908, are applicable to the  jurisdiction exercisable under the Letters  Patent, except that they do not restrict the  express Letters Patent appeal.  31. Though not directly, some observations  made by this Court also support the consistent view  taken by the Privy Council that Order 43 Rule 1  applies to the original proceedings before the Trial  Judge. In Union of India v. Mohindra Supply Co.  [(1962) 3 SCR 497 : AIR 1962 SC 256], this Court  made the following observations :  The intention of the legislature in  enacting sub-section (1) of Section 104 is  clear: the right to appeal conferred by any  other law for the time being in force is  expressly preserved. This intention is  emphasised by Section 4 which provides that  in the absence of any specific provision to the  contrary nothing in the Code is intended to  limit or otherwise affect any special jurisdiction  or power conferred by or under any other law  for the time being in force. The right to appeal  against judgments (which did not amount to  decrees) under the Letters Patent, was  therefore not affected by Section 104(1) of the  Code of Civil Procedure, 1908.  32. Thus, this Court has clearly held that the  right to appeal against judgments under the Letters  Patent was not affected by the Section 104(1) of the  Code of 1908 and the decision therefore fully  supports the argument of Mr. Sorabjee that there is  no inconsistency between the Letters Patent  jurisdiction and Section 104 read with Order 43 Rule  1 of the Code of 1908." Similarly, in Shankarlal  Aggarwal’s case [(1964) 1 SCR 717 : AIR 1965 SC  507] this Court while construing the provisions of  Section 202 of the Indian Companies Act observed  as follows :  There was no doubt either that most of  the orders or decisions in winding up would not  be comprehended within the class of  appealable orders specified in Section 104 or  Order 43, Rule 1. If therefore the contention of  the respondent were accepted it would mean  that in the case of orders passed by the  District Courts appeals would lie only against  what would be decrees under the Code as well

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as appealable orders under Section 104 and  Order 43, Rule 1 and very few of the orders  passed in the courts of the winding up would  fall within these categories. On the other hand,  the expression "judgment" used in Clause 15 is  wider..... The learned Judge therefore rejected  a construction which would have meant that  the same orders passed by District Courts and  by a Single Judge of a High Court would be  subject to different rules as to appealability.  33. There is yet another aspect of the matter which  shows that Section 104 merely provides an additional or  supplemental remedy by way of appeal and, therefore,  widens rather than limits the original jurisdiction of the  High Court. For instance, in this very case with which this  Court was dealing, an order passed under Section 202 of  the Companies Act was appealable to a larger Bench and  yet it was argued that the order being of an interlocutory  nature would not be a judgment and therefore no appeal  would lie to the Division Bench. This contention was  negatived by the Supreme Court and it was held that  against the order passed by a Trial Judge under the  Companies Act, an appeal would lie to the Division Bench.  On a parity of reasoning, therefore, Section 104 read with  Order 43 Rule 1 expressly authorises and creates a forum  for appeal against orders falling under various clauses of  Order 43 Rule 1, to a larger Bench of the High Court  without at all disturbing, interfering with or overriding the  Letters Patent jurisdiction. There are a number of other  Acts also which confer additional powers of appeal to a  larger Bench within the High Court against the order of a  Trial Judge." It now remains to be shown why the case of Ram Sarup (supra) was  overruled. The relevant portion reads as follows: "38. The Lahore High Court relied on the  decision of the Privy Council in Hurrish Chunder  Chowdry’s case [10 IA 4 : ILR (1883) 9 Cal 482].  The High Court further held that Section 104 does  not in any way take away the right of appeal  conferred by the Letters Patent of the High Court but  merely bars a second appeal from orders passed  under Order 43 Rule 1 to Division Bench. A contrary  view was taken by the Allahabad High Court in Ram  Sarup v. Kaniz Ummehani [ILR 1937 All 386 : AIR  1937 All 165] where the following observations were  made :  It may, however, be conceded that this  saving clause does not occur in sub-section (2)  of Section 104. But under the corresponding  Section 588 of the old Code, where the words  were "orders passed in appeal under this  section shall be final," their Lordships of the  Privy Council in Hurrish Chunder Chowdry v.  Kali Sundari Debia [10 IA 4 : ILR (1883) 9 Cal  482] observed that Section 588, which has the  effect of restricting certain appeals, did not  apply to a case where the appeal is from one  of the Judges of the High Court to the Full  Court.... In any case Section 104(2) does not  contain any express provision which would  suggest that the provisions of the Letters  Patent have been abrogated. We accordingly  hold that under Clause 10 of the Letters Patent  an appeal lies from the order of a Single Judge  passed in appeal.

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39. 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 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 otherwise. The  relevant portion of Clause 15 of the Letters Patent  may be extracted thus:  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....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, made (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.  

       40. A perusal of the Letters Patent would clearly  reveal two essential incidents \026 (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 when the Trial  Judge decides an appeal against a judgment or decree  passed by the district courts in the mofussil, a further  appeal shall only lie 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

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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.         41. 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 is clearly pointed out that in  such cases no further appeal would lie to the Division  Bench under the Letters Patent. The distinction drawn by  the Allahabad High Court regarding the application of  Section 104 is a distinction without any difference"

       Much emphasis is sought to be put on    the sentence, i.e.  "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 will lie to the Single Judge, no further appeal  will lie to the Division Bench" and it is submitted that the Court  was laying down that a further appeal will not lie even if Letters  Patent permitted.  The sentence cannot be read in isolation.  It  must be read in the context of all that is stated before it.  It is  already held that Section 104 read with Order 43 Rule 1 C.P.C.  confers additional powers of appeal to a larger Bench within the  High Court.  When read in context the sentence only means that  in case of Orders not covered by Letters Patent a further appeal  will not lie.  This is also clear from the subsequent sentence that  there is nothing else in Letters Patent which permits a further  appeal barred by Section 104(2) C.P.C.  As set out above,  Section 104(2) only bars appeals against Order passed in appeal  under the Section. Thus Section 104(2) does not bar appeals  permitted by any law in force.  Also to be noted that principle in  Ram Sarup’s case (supra), that Section 104 did not bar a Letters  Patent appeal was specifically accepted. It is also accepted that  Letters Patent is a special law. However on the wordings of the  concerned Letters Patent as noticed, it was held that the Letters  Patent did not permit a second appeal. Had the Letters Patent  permitted a second appeal, on the ratio laid down earlier, a  Letters Patent Appeal would have been held to be maintainable.  In our case it is an admitted position that the concerned Letters  Patent permits an appeal.            It must also be mentioned that, as set out hereinabove,  their Lordships considered the relevant portion of Clause 15 of  the Letters Patent which has been extracted in the judgment,  but unfortunately another relevant portion of Clause 15 has been  missed.   If Clause 15 of the Letters Patent of the Bombay High  Court is read in its entirety it leaves no manner of doubt that it  provides for an appeal to the said High Court from the judgment  of one Judge of the said High Court, subject to certain  exceptions enumerated therein.  The first part of Clause 15  contemplates two types of orders passed by a Single Judge of  the High Court against which an appeal shall lie to the High  Court \026 First an order of the Single Judge exercising Original  Jurisdiction which amounted to judgment; and second, orders of  a Single Judge of the High Court exercising appellate jurisdiction  subject to the orders specified, which were excepted, such as a

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judgment passed 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  High Court, or an order made in the exercise of revisional  jurisdiction etc. etc.  Clearly, therefore, Clause 15 of the Letters  Patent contemplates an appeal against the judgment of a Single  Judge of the High Court exercising appellate jurisdiction,  provided the judgment appealed against is not one which was  preferred against an appellate order, meaning thereby that no  Letters Patent Appeal would lie against an order passed by a  Single Judge in Second Appeal, or an order passed in revisional  jurisdiction,   The latter part of Clause 15, however, provides  that an appeal shall lie to the High Court from a judgment of the  Single Judge in exercise of appellate jurisdiction in respect of a  decree or order made in the exercise of appellate jurisdiction by  a Court subject to superintendence of the said High Court, where  the Judge who passed the judgment declares that the case is a  fit one for appeal.  Thus under Clause 15 a Letters Patent Appeal  is competent even against an order passed by the High Court in  Second Appeal provided the Judge deciding the case declares  that the case is fit for appeal.  In substance, therefore, Clause  15 of the Letters Patent of the Bombay High Court provided for  an appeal \026 (1) against a judgment of a Single Judge of the High  Court ; (2)  against a judgment of a Single Judge of the High  Court exercising appellate jurisdiction, except in cases where the  Single Judge is sitting in Second Appeal or where he exercises  the revisional jurisdiction; and (3) judgment of the High Court  even if passed in Second Appeal provided the Judge certifies it  as fit for appeal to a Division Bench.  Since the relevant portion  of the Letters Patent was not extracted in the judgment, Their  Lordships came to the conclusion set out above viz.:

       "40.    A perusal of the Letters Patent would clearly reveal  that essential incidents \026 (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."  

       We are of the opinion that in reaching this conclusion the  Court missed the relevant portion of Clause 15 of the Letters  Patent of the Bombay High Court.  Reliance cannot, therefore, be  placed on this judgment for the proposition that under Clause 15  of the Letters Patent of the Bombay High Court no appeal to a  Division Bench from the order of the Single Judge in exercise of  appellate jurisdiction is maintainable.  Thus the unanimous view of all Courts till 1996 was that  Section 104(1) C.P.C. specifically saved Letters Patent Appeals  and the bar under 104(2) did not apply to Letters patent  Appeals.  The view has been that a Letters Patent Appeal cannot  be ousted by implication but the right of an Appeal under the  Letters Patent can be taken away by an express provision in an

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appropriate Legislation.  The express provision need not refer to  or use the words "Letters Patent" but if on a reading of the  provision it is clear that all further Appeals are barred then even  a Letters Patent Appeal would be barred.  For the first time in the case of Resham Singh Pyara Singh  vs. Abdul Sattar reported in (1996) 1 SCC 49 a contrary view  was adopted by a 2 judge bench of this Court. In this case there  was an Appeal, before a Single Judge of the High Court, against  an order of the City Civil Court granting an interim injunction.    The question was whether a Letters Patent Appeal was  maintainable against the order of the Single Judge.  This Court,  without considering any of the other previous authorities of this  Court, without giving any reasons whatsoever, did not follow the  ratio laid down in Shah Babulal Khimji’s case, (which was binding  on it) held as follows: "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. In Khimji  case [(1981) 4 SCC 8] the suit was filed on the  original side of the High Court and the learned Single  Judge on the original side passed an interlocutory  order. Against the orders of the learned Single  Judge, though it was an interlocutory order, since  the appeal would lie to the Division Bench under the  Letters Patent, this Court held that against the  interlocutory orders passed by the Single Judge,  Letters Patent Appeal would be maintainable. That  ratio, therefore, is clearly inapplicable to the facts in  this case."  

Then in the case of New Kenilworth Hotel (P) Ltd. vs.   Orissa State Finance Corporation and Ors. reported in (1997) 3  SCC 462 the question, whether a Letters Patent Appeal was  maintainable, again arose. In this case a status quo order was  passed by the trial Court.  In Appeal, a single Judge of the High  Court, vacated the Order of status quo.  Attention of this Court  was drawn to the 3 Judge Bench decision in the case of Shah  Babulal Khimji (supra) and to the 2 Judge Bench decision in the  case of Resham Singh Pyara Singh (supra). Shah Babulal  Khimji’s case being a 3 Judge Bench decision would prevail over  Resham Singh Pyara Singh’s case. It was also a binding decision  on this Bench yet surprisingly the Court followed Resham Singh  Pyara Singh’s case. Of course the other decisions of this Court do  not appear to have been brought to the attention of the Court.  In this case it was also held that the concerned Order was not  covered by Clause 10 of the Letters Patent. The following  observations make this clear: "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 revisional 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." With greatest of respect to the learned Judges it must be  mentioned that it has been omitted to be noticed that the  concerned Letters Patent had three limbs as set out in Central

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Mine Planning & Design Institute Ltd.  vs. Union of India reported  in (2001) 2 SCC 588.  In this case the three limbs have been  noted. It is held as follows:  "8.     A close reading of the provision, quoted  above, shows that it has three limbs : the first limb  specifies the type of judgments of one Judge of the  High Court which is appealable in that High Court  and the categories of judgments/orders which are  excluded from its ambit; the second limb provides  that notwithstanding anything provided in the first  limb, an appeal shall lie to that High Court from the  judgment of one Judge of the High Court or one  Judge of any Division Court, pursuant to Section 108  of the Government of India Act (now Article 225 of  the Constitution of India), on or after 1-2-1929  passed 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; and the third limb says that the right of  appeal from other judgments of Judges of the said  High Court or such Division Court shall be to "us, our  heirs or successors in our or their Privy Council, as  hereinafter provided."  

Thus it is clear that the cases of  Resham Singh Pyara Singh and  New Kenilworth Hotel (P) Ltd. lay down wrong law and are  overruled.  

It must now be noticed that even after the aforementioned  two decisions this Court has continued to hold that a Letters  Patent Appeal is not affected. In the case of Vinita M. Khanolkar vs. Pragna M. Pai  reported in (1998) 1 SCC 500 an Appeal had been filed against  an Order passed under Section 6 of the Specific Relief Act.  It  was contended that such an Appeal was barred by sub-section  (3) of Section 6 of the Specific Relief Act.  This Court agreed that  Section 6(3) of the Specific Relief Act barred such an Appeal but  went on to consider whether Section 6(3) could bar a Letters  Patent Appeal.  In this context this Court held as follows: "3. Now it is well settled that any statutory  provision barring an appeal or revision cannot cut  across the constitutional power of a High Court. Even  the power flowing from the paramount charter under  which the High Court functions would not get  excluded unless the statutory enactment concerned  expressly excludes appeals under letters patent. No  such bar is discernible from Section 6(3) of the Act.  It could not be seriously contended by learned  counsel for the respondents that if clause 15 of the  Letters Patent is invoked then the order would be  appealable. Consequently, in our view, on the clear  language of clause 15 of the Letters Patent which is  applicable to Bombay High Court, the said appeal  was maintainable as the order under appeal was  passed by learned Single Judge of the nigh Court  exercising original jurisdiction of the court. Only on  that short ground the appeal is required to be  allowed." The question whether a Letters Patent Appeal was maintainable  against the Judgment/Order of a single Judge passed in a First  Appeal under Section 140 of the Motor Vehicles Act was  considered by this Court in the case of Chandra Kanta Sinha vs.  Oriental Insurance Co. Ltd. reported in (2001) 6 SCC 158.  In

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this case, it was held that such an Appeal was maintainable.  It  is held that the decision of this Court in the case of New  Kenilworth Hotel (P) Ltd. (supra) was inapplicable.           Thereafter in the case of Sharda Devi vs. State of Bihar  reported in (2002) 3 SCC 705 the question again arose whether  a Letters Patent Appeal was maintainable in view of Section 54  of the Land Acquisition Act.   A three Judges Bench of this Court  held that a Letters Patent was a Charter under which the High  Courts were established and that by virtue of that Charter the  High Court got certain powers.    It was held that when a Letters  Patent grants to the High Court a power of Appeal, against a  Judgment of a single Judge, the right to entertain such an  Appeal does not get excluded unless the statutory enactment  excludes an Appeal under the Letters Patent.  It was held that as  Section 54 of the Land Acquisition Act did not bar a Letters  Patent Appeal such an Appeal was maintainable.   At this stage it  must be clarified that during arguments, relying on the sentence  "The powers given to a High Court under the Letters patent are  akin to the constitutional powers of a High Court" in para 9 of  this Judgment it had been suggested that a Letters Patent had  the same status as the Constitution of India. In our view these  observations merely lay down that the powers given to a High  Court are the powers with which that High Court is constituted.  These observations do not put Letters Patent on par with the  Constitution of India.          In the case of Subal Paul vs. Maline Paul reported in  (2003) 10 SCC 361, the question was whether a Letters Patent  Appeal was maintainable against an Order passed by a single  Judge of the High  Court in an Appeal under Section 299 of the  Succession Act, 1925.  It was held that an Appeal under Section  299 was permitted by virtue of Section 299 and not under  Section 104 C.P.C.  Section 299 of the Indian Succession Act,  1925 reads as follows:

"299.  Appeals from orders of District Judge.\027 Every order made by a District Judge by virtue of  the powers hereby conferred upon him shall be  subject to appeal to the High Court in accordance  with the provisions of the Code of Civil Procedure,  1908 (5 of 1908), applicable to appeals."   

Thus Section 299 permitted an Appeal to the High Court in  accordance with the provision of CPC.  That provision was  Section 104.  The Order passed by the Single Judge was an  Order under Section 104.  The further Appeal was under Letters  Patent only.  Section 299 of the Indian Succession Act did not  permit it.  The Letters Patent Appeal was saved/permitted by the  words "any other law for the time being in force" in Section  104(1).  It was thus held that Clause 15 of the Letters Patent  permitted a right of Appeal against Order/Judgment passed  under any Act unless the same was expressly excluded.  It was  held that the bar under Section 104 (2) would not apply if an  Appeal was provided in any other law for the time being in force.   Thus this authority also recognizes that an appeal permitted by  "any other law for the time being in force" will not be hit by  Section 104(2).           Thus, the consensus of judicial opinion has been that  Section 104(1) Civil Procedure Code expressly saves a Letters  Patent Appeal. At this stage it would be appropriate to analyze  Section 104 C.P.C.   Sub-section (1) of Section 104 CPC provides  for an appeal from the orders enumerated under sub-section (1)  which contemplates an appeal from the orders enumerated  therein, as also appeals expressly provided in the body of the  Code or by any law for the time being in force.  Sub-section (1)  therefore contemplates three types of orders from which appeals

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are provided namely, 1) orders enumerated in sub-section (1).  2)  appeals otherwise expressly provided in the body of the Code  and  3) appeals provided by any law for the time being force.  It is  not disputed that an appeal provided under the Letters Patent of  the High Court is an appeal provided by a law for the time being  in force. As such an appeal is expressly saved by Section 104(1).  Sub-clause 2 cannot apply to such an appeal. Section 104 has to  be read as a whole. Merely reading sub-clause (2) by ignoring  the saving clause in sub-section (1) would lead to a conflict  between the two sub-clauses. Read as a whole and on well  established principles of interpretation it is clear that sub-clause  (2) can only apply to appeals not saved by sub-clause (1) of  Section 104.   The finality provided by sub-clause (2) only  attaches to Orders passed in Appeal under Section 104, i.e.,  those Orders against which an Appeal under "any other law for  the time being in force" is not permitted.   Section 104(2) would  not thus bar a Letters Patent Appeal.  Effect must also be given  to Legislative intent of introducing Section 4 C.P.C. and the  words "by any law for the time being in force" in Section 104(1).   This was done to give effect to the Calcutta, Madras and Bombay  views that Section 104 did not bar a Letters Patent.  As Appeals  under "any other law for the time being in force" undeniably  include a Letters Patent Appeal, such appeals are now  specifically saved.  Section 104 must be read as a whole and  harmoniously.  If the intention was to exclude what is specifically  saved in sub-clause (1), then there had to be a specific  exclusion.   A general exclusion of this nature would not be  sufficient.  We are not saying that a general exclusion would  never oust a Letters Patent Appeal. However when Section  104(1) specifically saves a Letters Patent Appeal then the only  way such an appeal could be excluded is by express mention in  104(2) that a Letters Patent Appeal is also prohibited. It is for  this reason that Section 4 of the Civil Procedure Code provides  as follows:  

"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. (2) In particular and without prejudice to the  generality of the proposition contained in sub-section  (1), nothing in this Code shall be deemed to limit or  otherwise affect any remedy which a landholder or  landlord may have under any law for the time being  in force for the recovery of rent of agricultural land  from the produce of such land." As stated hereinabove, a specific exclusion may be clear from  the words of a statue even though no specific reference is made  to Letters Patent. But where there is an express saving in the  statute/section itself, then general words to the effect that "an  appeal would not lie" or "Order will be final" are not sufficient.   In such cases, i.e., where there is an express saving, there must  be an express exclusion.  Sub-clause (2) of Section 104 does not  provide for any express exclusion.   In this context reference  may be made to Section 100A.   The present Section 100A was  amended in 2002.  The earlier Section 100A, introduced in 1976,  reads as follows: "100A.  No further appeal in certain cases.-   Notwithstanding anything contained in any Letters

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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." It is thus to be seen that when the Legislature wanted to exclude  a Letters Patent Appeal it specifically did so.  The words used in  Section 100A are not by way of abundant caution. By the  Amendment Acts of 1976 and 2002 a specific exclusion is  provided as the Legislature knew that in the absence of such  words a Letters Patent Appeal would not be barred. The  Legislature was aware that it had incorporated the saving clause  in Section 104(1) and incorporated Section 4 in the C.P.C. Thus  now a specific exclusion was provided. After 2002, Section 100A  reads as follows: "100A. No further appeal in certain cases.-  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  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." To be noted that here again the Legislature has provided for a  specific exclusion.  It must be stated that now by virtue of  Section 100A no Letters Patent Appeal would be maintainable.   However, it is an admitted position that the law which would  prevail would be the law at the relevant time. At the relevant  time neither Section 100A nor Section 104(2) barred a Letters  Patent Appeal.           Applying the above principle to the facts of this case, the  appeal under Clause 15 of the Letters Patent is an appeal  provided by a law for the time being in force.  Therefore, the  finality contemplated by Sub-section (2) of Section 104 did not  attach to an Appeal passed under such law.         It was next submitted that Clause 44 of the Letters Patent  showed that Letters Patent were subject to amendment and  alteration. It was submitted that this showed that a Letters  Patent was a subordinate or subservient piece of law.  Undoubtedly, Clause 44 permits amendment or alteration of  Letters Patent but then which legislation is not subject to  amendment or alteration.  CPC is also subject to amendments  and alterations. In fact it has been amended on a number of  occasions.  The only unalterable provisions are the basic  structure of our Constitution. Merely because there is a provision  for amendment does not mean that, in the absence of an  amendment or a contrary provision, the Letters Patent is to be  ignored. To submit that a Letters Patent is a subordinate piece of  legislation is to not understand the true nature of a Letters  Patent. As has been held in Vinita Khanolkar’s case (supra) and  Sharda Devi’s case a Letters Patent is the Charter of the High  Court. As held in Shah Babulal Khimji’s case (supra) a Letters  Patent is the specific law under which a High Court derives its  powers. It is not any subordinate piece of legislation.  As set out  in aforementioned two cases a Letters Patent cannot be excluded  by implication. Further it is settled law that between a special  law and a general law the special law will always prevail. A  Letters Patent is a special law for the concerned High Court. Civil  Procedure Code is a general law applicable to all Courts. It is well  settled law, that in the event of a conflict between a special law  and a general law, the special law must always prevail. We see

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no conflict between Letters Patent and Section 104 but if there  was any conflict between a Letters Patent and the Civil  Procedure Code then the provisions of Letters Patent would  always prevail unless there was a specific exclusion. This is also  clear from Section 4 Civil Procedure Code which provides that  nothing in the Code shall limit or affect any special law. As set  out in Section 4 C.P.C. only a specific provision to the contrary  can exclude the special law. The specific provision would be a  provision like Section 100A.      It was also sought to be argued that if such be the  interpretation of Section 104 CPC, it may create an anomalous  situation and may result in discrimination in as much as an  appeal under the Letters Patent will be available against an order  passed by the High Court on its original side, whereas such an  appeal will not be available in a case where the order is passed  by the High Court in its appellate jurisdiction.  A similar  argument was urged before this Court in South Asia Industries  (P) Ltd. (supra) but the same was repelled in the following  words:-

"The arguments that a combined reading of  cls. 10 and 11 of the Letters Patent leads to the  conclusion that even the first part of cl.10 deals only  with appeals from Courts subordinate to the High  Court has no force.  As we have pointed out earlier,  cl.11 contemplates conferment of appellate  jurisdiction on the High Court by an appropriate  Legislature against orders of a Tribunal. Far from  detracting from the generality of the words  "judgment by one Judge of the said High Court", cl.  11 indicates that the said judgment takes in one  passed by a single Judge in an appeal against the  order of a Tribunal. It is said, with some force, that if  this construction be accepted there will be an  anomaly, namely that in a case where a single Judge  of the High Court passed a judgment in exercise of  his appellate jurisdiction in respect of a decree made  by a Court subordinate to the High Court, a further  appeal to that Court will not lie unless the said Judge  declares that the case is a fit one for appeal,  whereas, if in exercise of his second appellate  jurisdiction, he passed a judgment in an appeal  against the order of a Tribunal, no such declaration  is necessary for taking the matter on further appeal  to the said High Court.  If the express intention of  the Legislature is clear, it is not permissible to  speculate on the possible reasons that actuated the  Legislature to make a distinction between the two  classes of cases.  It may, for ought we know, the  Legislature thought fit to impose a limitation in a  case where 3 Courts gave a decision, whereas it did  not think fit to impose a limitation in a case where  only one Court gave a decision".

       We find ourselves in respectful agreement with the  reasoning of this Court in the aforesaid decision. The same  reasoning would apply in respect of the submission that if it is  held that Section 104(2) did not bar a Letters Patent Appeal an  anomalous situation would arise in as much as if the matter were  to come to the High Court a further Appeal would be permitted  but if it went to the District Court a further Appeal would not lie.  An Appeal is a creature of a Statute. If a Statute permits an  Appeal, it will lie.  If a Statute does not permit an Appeal, it will  not lie. Thus for example in cases under the Land Acquisition

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Act, Guardian and Wards Act and the Succession Act a further  Appeal is permitted  whilst under the Arbitration Act a further  Appeal is barred. Thus different statutes have differing  provisions in respect of Appeals. There is nothing anomalous in  that. A District Court cannot be compared to a High Court which  has special powers by virtue of Letters Patent.  The District Court  does not get a right to entertain a further Appeal as it does not  have "any law for the time being in force" which permits such an  Appeal. In any event we find no provisions which permit a larger  Bench of the District Court to sit in Appeal against an order  passed by a smaller Bench of that Court.  Yet in the High Court  even, under Section 104 read with Order 43 Rule 1 C.P.C., a  larger Bench can sit in Appeal against an order of a Single Judge.  Section 104 itself contemplates different rights of Appeals.  Appeals saved by Section 104(1) can be filed. Those not saved  will be barred by Section 104(2). We see nothing anomalous in  such a situation.  Consequently the plea of discrimination urged  before us must be rejected. Under these circumstances, the Order of the High Court  cannot be sustained.  It is hereby set aside.  The appeals are  accordingly allowed with no order as to costs.  The matters are  remitted back to the High Court for decision on merits.