P.S. Sathappan Vs. Andhra Bank Ltd. & Ors [2004] Insc 620 (7 October 2004)
2004 Latest Caselaw 580 SC

P.S. Sathappan Vs. Andhra Bank Ltd. & Ors [2004] Insc 620 (7 October 2004)

N. Santosh Hegde & S.B. Sinha W I T H CIVIL APPEAL NO. 5385 OF 1998 AND CIVIL APPEAL NOS. 5389-90 OF 2002 S.B. SINHA, J :

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

BACKGROUND FACTS :

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

The First Respondent herein filed a suit against the Appellant herein in the Court of II Addl. Subordinate Judge, Coimbatore which was marked as O.S. No.403 of 1974. The said suit was decreed on or about 15.4.1976.

An execution petition was filed by the First Respondent-decree holder for executing the said decree. In the said execution proceeding for realization of the decretal amount the property belonging to the Appellant herein was put to auction. The validity of the said auction came to be questioned by the Appellant by filing an Execution Application on or about 8.10.1979 praying therein for setting aside the court auction sale held on 26.9.1979 in respect of Ginning factory situate at Tirurppur named and styled Sree Krishna Ginning Factory. The said application was marked as Executive Application No. 419 of 1979. The said application was dismissed by the Execution Court on 10.10.1985 against which an appeal was preferred by the Appellant which was also dismissed by a learned Single Judge of the Madras High Court by a judgment and order dated 8.10.1990. A Letters Patent Appeal thereagainst purported to be in terms of Clause 15 of the Letters Patent of the Madras High Court was filed by the Appellant which was dismissed by a Full Bench of the Madras High Court by a judgment and order dated 22.8.1998 holding that in terms of sub-section (2) of Section 104 of the Code, an appeal against an order passed by the Appellate Court under Order XVIII Rule 1 read with Section 104 of the Code, was not maintainable. A certificate of fitness, however, in terms of Article 133 of the Constitution of India was prayed for by the Appellant and granted by the said Full Bench.

When the matter was placed before a Division Bench of this Court, it noticed a conflict of opinion between a decision of a 3-Judge Bench of this Court in New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and Others [(1997) 3 SCC 462] and a two Judge-Bench in Resham Singh Pyara Singh vs. Abdul Sattar [(1996) 1 SCC 49], on the one hand, and a Constitution Bench decision in Gulab Bai and Another vs.

Puniya [1966 (2) SCR 102], on the other; and referred the matter to a Constitution Bench observing :

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

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

That is how the matter is before us.

SUBMISSIONS :

Mr. R. Sundravardhan, learned Senior Counsel appearing on behalf of the Appellant, would submit that the Letters Patent of a High Court setting out the constitutional power of the court must be held to be a special statute and, thus, in case of a conflict between the provisions thereof and the Code of Civil Procedure, the former would prevail. The learned counsel would contend that the Letters Patent being a special statute, the right to appeal contained in Clause 15 thereof cannot be taken away by reason of sub- section (2) of Section 104 of the Code which is general in nature.

Drawing our attention to the Constitution Bench decision of this Court in Gulab Bai (supra), the learned counsel would contend that therein several decisions including the decision of the Full Bench of the Allahabad High Court L. Ram Sarup vs. Mt. Kaniz Ummehani [AIR 1937 (Allahabad) 165] having been approved, it is beyond any pale of doubt that a right of appeal under clause 15 of the Letters Patent of the Madras High Court would be available to a suitor irrespective of the provisions contained in sub-section (2) of Section 104 of the Code of Civil Procedure .

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

The decisions of this Court in Resham Singh Pyara Singh (supra) and New Kenilworth Hotel (supra) do not lay down the correct law, Mr.

Sundravardhan would submit, having regard to the aforementioned decisions. The learned counsel would argue that once the appellate jurisdiction is exercised by the High Court, Clause 15 of the Letters Patent of the Madras High Court would govern the forum for a second appeal therefrom; the only restriction being that such an order must be a 'judgment'. Strong reliance in this behalf has been placed on Radhy Shyam vs. Shyam Behari Singh [1971 (1) SCR 783].

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

Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the respondents, on the other hand, would contend that having regard to Clause 44 of the Letters Patent of the Madras High Court, it is beyond any doubt or dispute that the provisions thereof are subject to statutory provisions framed by the State Legislature or the Parliament. It was urged that as an order passed under Order XXI, Rule 90 of the Code can be appealed against only in terms of sub-section (1) of Section 104 of the Code, the restrictions by way of a further appeal placed in terms of sub-section (2) of Section 104 would automatically operate. In other words, Mr.

Vaidyanathan would submit that sub-section (2) of Section 104 of the Code applies when an order is appealable in terms of sub-section (1) thereof.

Drawing our attention to a decision of a 4-Judge Bench of this Court in South Asia Industries Private Ltd. vs. S.B. Sarup Singh and Others [1965 (2) SCR 756], the learned counsel would argue that a right of appeal conferred by reason of Letters Patent can be taken away by a statute either expressly or by necessary implication and in that view of the matter having regard to the legislative scheme contained in Section 104 of the Code, it was not necessary for it to expressly mention that such appeal would not be maintainable irrespective of the fact that the same is provided for under the Letters Patent of different High Courts.

Mr. Vaidyanathan would contend that the decisions of this Court in Mohindra Supply Company (supra) and South Asia Industries Private Ltd.

(supra) do not lay down any law contrary to or inconsistent with the decision of this Court in Gulab Bai (supra).

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

STATUTORY PROVISIONS :

Clauses 15 and 44 of the Letters Patent of the Madras High Court read as under :

"15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction.-And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their privy council as hereinafter provided." "44. Powers of the Indian Legislature preserved.- And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the Legislative powers of the Governor-General in Legislative Council, and also of the Governor- General in Council under section 71 of the Government of India Act, 1915; and also of the Governor-General, in cases of emergency under Section 72 of the Act, and may be in all respects amended and altered thereby." Sections 4(1), 100A, 104 and 117 of the Code read as under :

"4. Savings.-(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force." "100A. (as inserted in 1976) Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal." "100A. (as substituted in 2002) No further appeal in certain cases. 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 (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 :- " (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;" "Order XLIX of the Code of Civil Procedure Chartered High Courts

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

2. Savings in respect of Chartered High Courts.- Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by a Chartered High Court.

3. Application of rules.- The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely :- (1) rule 10 and rule 11, clauses (b) and (c), of Order VII;

(2) rule 3 of Order X;

(3) rule 2 of Order XVI;

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

(5) rules 1 and 8 of Order XX; and (6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction." ANALYSIS :

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

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

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

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

Section 104 of the Code has to be read as a whole. Sub-section (1) of Section 104 provides for appeals from the orders specified therein and from no other; save as otherwise expressly provided in the body of the said Code or any law for the time being in force. When the special statute confers a right of appeal, such right is saved, but by reason thereof no right of appeal is created under Section 104 of the Code.

When a right of appeal is conferred under a special statute, the bar contained in sub-section (2) of Section 104 of the Code would not operate and a right of intra-court appeal provided for in the Letters Patent of the High Court subject to any statutory embargo would, thus, be saved. To put the matter differently, if a right of appeal is created by a statute, the same would be governed by the terms thereof. The question as to whether any appeal governed by Clause 15 of the Letters Patent is maintainable or not will have to be judged having regard to the provisions contained therein as also the scheme thereof.

It is not in dispute that an appeal under Order XLIII, Rule 1 of the Code may either lie before the District Court or the High Court. An appealable order may also be passed by a High Court in its original jurisdiction. A right to maintain an appeal indisputably would depend upon the subject matter thereof. Having regard to Section 4 read with Order 49 of the Code only certain provisions of the Code as specified therein would have no application on the original side of the High Court. In the event, an appealable order is passed by the High Court in its original jurisdiction, an appeal may be maintainable both under Section 104 of the Code as also under Clause 15 of the Letters Patent, although the said right arises from two different sources, but as at present advised we need not advert to the effect thereof.

Sections 104 and 105 provide for an integrated scheme. The provisions contained therein must be read as a whole. By reason of sub- section (1) of Section 104, a limited right of appeal has been conferred in relation to the categories of cases specified therein. However, if an order is passed which does not come within the purview of sub-section (1) of Section 104, the right of appeal must be referable to any other provision of the Code, as for example, Section 96 or Section 100 or any other special statute.

Section 104 provides for an appeal from an order passed by an appropriate court. Section 104 and Order XLIII of the Code contain provisions as regard appealability of the orders in the cases specified therein and in that view of the matter they must be invoked in their entirety and not in isolation.

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

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

Sub-section (1) of Section 104 of the Code provides for an appeal from the original order whether passed by a subordinate court or High Court exercising an original jurisdiction and not from an appellate order. In other words, it provides for a first appeal. An appeal under Clause 15 of the Letters Patent is saved under Sub-section (1) of Section 104 of the Code when a right of appeal is required to be exercised in relation to an original order. An appellate order is not contemplated by Sub-section (1) of Section 104 of the Code. Letters Patent of a High Court or a special statute also in the context of Section 104(1) of the Code do not speak of an appellate order.

Thus, when an appeal under Section 104(1) or the Letters Patent of the High Court is availed of, there is no question of any further appeal unless the same is provided for under the statute itself.

Sections 4 and 104 of the Code, furthermore, must be read together.

Appeals under the special statute is saved only to the extent a contrary provision is not contained in other provision thereof.

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

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

Let us consider this from a slightly different angle.

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

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

For proper construction of Section 104 of the Code, vis-`-vis Clause 15 of the Letters Patent, it is necessary to ascertain the intention of the Parliament. If a right of appeal, it is trite, is a creature of statute, it must be governed thereby. Sub-section (2) of Section 104 clearly states that no 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 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 (1999) 1 SCC 123]. Appeals under the aforementioned provision as also under Order LXIII of the Code relate to interlocutory orders. By reason of an order passed thereunder the matter may not be finally disposed of. If the Parliament in the aforementioned situation thought it fit to cut down a further appeal, no exception thereto can be taken. In any event, even if it be held that by reason of Sub-section (2) of Section 104 of the Code a party may be deprived of a Letters Patent Appeal in terms of Clause 15 of the Letters Patent, he would be at liberty to file, in an appropriate case, an application under Article 136 of the Constitution of India before this Court.

Even, in a case where the remedy under Section 104(1) is not availed of, in an appropriate case the order may be questioned in the appeal against the ultimate decree in terms of Section 105 thereof.

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

Letters Patent is a special statue but in the event of a conflict, as would appear from the discussions made hereinafter, the provisions of the Code shall prevail. The power under Clause 15 of the Letters Patent is not a constitutional power of a High Court. Reliance placed on Vinita M.

Khanolkar (supra) and Sharda Devi (supra) in which one of us (Variava, J.) was a member is misplaced. This Court in the aforementioned decisions did not lay down a law that the statutory provision providing for an appeal under the Letters Patent was in terms of the constitutional power of a High Court.

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

For history of the establishment of the High Courts of India, reference 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 (2004) 4 SCC 460] The provisions of the Letters Patent are also in all respects amenable to amendments and alterations by any Legislative or Parliamentary Acts.

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

The Letters Patent under the seal may be issued for various purposes, but primarily by way of executive function. The Letters Patent, however, may be issued also on the advice of the Privy Council or under a Statute.

(See Halsbury's Laws of England, Fourth Edition, Vol. 8, page 677).

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

If Letters Patent was to prevail over the Code, no appeal may lie from a judgment of Single Judge to Division Bench in relation to orders specified in Section 104. Conflict in this behalf is sought to be resolved in Shah Babulal Khimji (supra) Before adverting further as regard this question, we may notice that in it is stated :

"In 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" 191 : AIR 1917 All 325] were approved whereas Ramsarup (supra) and 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 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 Namakkal Constituency and Ors. 1952 SCR 218, Upadhyaya Hargovind SCC 66) Even in the aforementioned cases also, it has been held that a Letters Patent appeal may be barred by implication.

APPEAL UNDER SPECIAL STATUTE :

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

It is true that Section 100A of the Code contains a non-obstante clause as regard the overriding effect of the said provision over the Letters Patent of the High Court but the same, in our considered opinion, was done by way of ex abundanti cautela. Furthermore, the Code of Civil Procedure (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 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 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 from no other orders". What is, thus, saved is an appeal which is expressly provided for under any other statute including the Letters Patent of the High Court. The saving clause contained in Section 104(1) of the Code must be literally construed having regard to the fact that the provisions other than specifically mentioned in Order 49 of 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 SECTION 104 OF THE CODE 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 AIR 1921 PC 80]. Thus, the rest of the code applies.

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

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

a) Section 104 of the Code of Civil Procedure read with Order 43 Rule 1 expressly authorizes a forum of appeal against orders falling under various clauses of Order 43 Rule 1 to a Larger Bench of a High Court without at all disturbing interference with or overriding the Letters Patent jurisdiction.

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

c) There is no inconsistency between section 104 read with Order 43 Rule 1 and the appeals under Letters Patent, as Letters Patent in any way does not exclude or override the application under section 104 read with Order 43 Rule 1 which shows that these provisions would not apply in internal appeals within the High Court." However, this Court in Shah Babulal Khimji (supra) had not adverted to various questions; but therewith we need not deal with at present.

We may notice that the decision of the Allahabad High Court in L.

Ram Sarup (supra) was not approved by this Court in Shah Babulal Khimji (supra), stating :

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

Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that it is in cases of appeals decided by a Single Judge under Section 100 of the Code of Civil Procedure .

Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise" (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" The Court referred with approval the decisions of Mathura Sundari Dassi vs. Haran Chandra Shaha [AIR 1916 Cal 361] and Lea Badin vs.

Upendra Mohan Roy Choudhury [AIR 1935 Cal. 35] to hold hat that Order XLIII Rule 1 of the Code will also apply to the proceedings before the original side of the High Court.

The views taken contrary thereto by the other High Courts had been expressly overruled. If the provisions of Section 104 read with Order XLIII Rule 1 of the Code are applicable as regard appealability of the orders in the matters specified therein, the said provisions must be invoked in their entirety and not in isolation. An appeal is the right of entering a superior court and invoking its aid and interposition to redress an error of the Court below. An appeal when expressly provided can be filed as a matter of right and in no other situation. No right of appeal can be inferred by implication or otherwise.

In Shah Babulal Khimji (supra), the decision of the Bombay High Court in Waman Ravji (supra) also did not find favour. [See para 147].

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

In Shah Babulal Khimji (supra), it is stated :

"Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that Section 104 read with Order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. Unfortunately, this fact does not appear to have been noticed by any of the decisions rendered by various High Courts." In Waman Ravji Kulkarni (supra), a learned Judge of the High Court construing Section 4 vis-`-vis Section 104 of the Code proceeded to hold that unless an appeal under the Letters Patent is specifically excluded, sub- section (2) of Section 104 cannot be read to create a bar as regard maintainability of the appeal under Clause 15 of the Letters Patent. Section 4 of the Code therein, in our opinion, has not been construed in its proper perspective. The said decision also does not lay down a good law.

GULAB BAI:

In Gulab Bai (supra), this Court was concerned with the provisions of appeal specially conferred under Sections 47 and 48 of the Guardians and Wards Act. Such provisions providing for appeal under the Special Act are saved both by reasons of Sections 4 as also 104 of the Code. Section 47 of the said Act provided for an appeal to the High Court from an order made by a court including an order passed under Section 25 (c) making or refusing to make an order for the return of a ward to the custody of his guardian. A question arose as to whether a further appeal would be maintainable in terms of Clause 18(1) of the Rajasthan High Court Ordinance, 1949. It was held that as no finality clause has been attached to the appellate order, such appeal would be maintainable. Gajendragadkar, CJ, speaking for the Constitution Bench pointed out that the finality clause is attached only to Section 47 of the said Act and not to the appellate order stating :

"It is clear that what is made final by s. 48 is an order made under this Act; and the context shows that it is an order made by the trial Court under one or the other provision of the Act. This position is made perfectly clear if the first part of s. 48 is examined. The finality prescribed for the order made under this Act is subject to the provisions of s. 47 and s. 622 of the earlier Code which corresponds to s. 115 of the present Code. In other words, the saving clause unambiguously means that an order passed by the trial Court shall be final, except in cases where an appeal is taken against the said order under s. 47 of the Act, or the propriety, validity, or legality of the said order is challenged by a revision application preferred under s. 115 of the Code. It is, therefore, essential to bear in mind that the scope and purpose of s. 48 is to make the orders passed by the trial Court under the relevant provisions of the Act final, subject to the result of the appeals which may be preferred against them, or subject to the result of the revision applications which may be filed against them. In other words, an order passed on appeal under s. 47 of the Act, or an order passed in revision under s. 115 of the Code, are, strictly, speaking, outside the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provision, subject, of course, to any appeal provided by law or by a constitutional provision, as for instance, Art. 136. The construction of s. 48, therefore, is that it attaches finality to the orders passed by the trial Court 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 :

"The 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 de