IMPORTANT POINT
Against an appellate order of a Single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar created by sub-section (2) of Section 104 of the Civil Procedure Code.

Headnote:Letters Patent-Clause 10-Civil Procedure Code, 1908-Section 104(2) r/w Order XLIII Rule 1(r) and Order XXXIX Rule 1-Letters Patent Appeal-Maintainability-Order granting status quo-Vacated by High Court in appeal-Appeal against-Not maintainable-Right of appeal provided under Clause 10 of Letters Patent would not be available-Statute having expressly prohibited filing of second appeal under sub-section (2) of Section 104-Judgment from an appellate jurisdiction stands excluded under first part of clause 10 of Letters Patent itself.
Held; 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. (Para 11)

ORDER

Leave granted.

2. These appeals by special leave arise from the judgment and order of the High Court of Orissa, made on December 16, 1996 in A.H.O. Nos. 40-42/95.

3. The admitted facts are that the appellant had filed a suit for declaration that the steps taken by the respondents under section 29 of the State Financial Corporation Act were illegal and sought permanent injunction restraining them from disturbing its possession. Pending suit, they sought ad interim injunction not to dispossess them from the hotel. The trial Court by order dated July 12, 1994 granted status quo whereby the appellant remained in possession of the suit premises. On appeal filed by the respondents, the learned single Judge vacated the status quo order by order dated May 18, 1995. Feeling aggrieved the appellant filed Letters Patent Appeal. By the impugned order the Division Bench has held that the appeals are not maintainable. Thus this appeal by special leave.

4. Shri A.M. Singhvi, learned Addl. Solicitor General appearing for the appellant, contends that under Clause 10 of the Letters Patent an appeal would lie against the judgment of the learned single Judge to the Division Bench. Though the order granting status quo by the trial court was vacated by the High Court, it is a judgment within the meaning of Section 2(9) of the Code of Civil Procedure, 1908 (for short, the Code ). Therefore, the bar under Sec. 104(2) of the Code is not attracted by operation of Sec. 4(1) of the Code. In support thereof, he placed strong reliance on the judgment of the Division Bench of that Court in Sukuri Dibya & Ors. v. Hemalata Panda1 and a Full Bench Judgment of that Court in Birendra Kr. Majhi v. Sitamani Bewa2. He also contended that though this Court has considered the non-maintainability of an appeal by operation of Sec. 104(2) of the Code read with Order XLIII Rule 1(r), the above distinction was not brought to the notice of this Court and that, therefore, the Full Bench judgment of the High Court still holds the field. We find no force in the contention.

5. It is settled legal position that right of appeal is a creature of the statute. Against an interlocutory order, an appeal has been provided under Sec. 104(1) of the Code read with Order XLIII Rule 1. In respect of interim injunction, it is covered by Order XLIII Rule 1(r). In this case, the order of status quo was passed in an application filed under Order XXXIX Rule 1 of the Code. Therefore, it is not in dispute that it is an order passed by the civil Court under Order XXXIX Rule 1 appealable under Order XLIII Rule 1(r) of the Code. Sub-section (2) of Section 104 specifically prohibits Second Appeal against such an order postulating that "No appeal shall lie from any order passed in appeal under this Section". In Resham Singh Pyara Singh v. Abdul Sattar3 a Bench of this Court consisting of K. Ramaswamy and B.L. Hansaria, JJ. has held that against an appellate order of a learned single Judge of a High Court passed by the Civil Court,. a Letters Patent Appeal would not lie by reason of the bar created by sub-section (2) of Section 104 of the Code.

6. Clause 10 of the Letters Patent reads as under :

"An appeal shall lie...from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a Court subject to the superintendence of High Court.....and not being an order made in exercise of revisional jurisdiction....) of one Judge of the said High Court...and in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal......."

7. 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

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1997 Supreme(SC) 74

IMPORTANT POINTAgainst an appellate order of a Single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar created by sub-section (2) of Section 104 of the Civil Procedure Code.

Cases Referred (3)

IMPORTANT POINT
Against an appellate order of a Single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar created by sub-section (2) of Section 104 of the Civil Procedure Code.