IMPORTANT POINT
The appeal under Clause 15 of the Letters Patent against an order passed by a Single Judge of the High Court setting in Appellate Jurisdiction is not barred by sub-section (2) of Section 104 of the Civil Procedure Code.

Headnote:(i) Civil Procedure Code, 1908-Sections 104, 100A and 4-Letters Patent of the High Court of Madras Clause 15-Interpretation of-Nature and extent of power of the High Court under Letters Patent-Letters Patent Appeal against an order passed by a single Judge of the High Court sitting in Appellate Jurisdiction-Maintainability-Whether Section 104(2) CPC would bar a Letters Patent Appeal-(No)-Section 104 CPC did not prohibit a Letters Patent Appeal-Section 104(1) CPC expressly saves a Letters Patent Appeal-Sub clause 2 cannot apply to such an appeal.
       Majority Judgment (S.N. Variava, J. for himself and for B.P. Singh and H.K. Sema, JJ.)
       Held : 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 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. (Paras 138 and 139)
       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. (Para 139)
       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. (Para 140)
       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 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. (Para 141)
       Minority Judgment (S.B. Sinha, J. for himself and for N. Santosh Hegde, J.)
       Held : 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 therefrom would be maintainable in terms of sub-section (2) thereof;
        (4) A right of appeal being creature of a statute, it may provide for a limited right of appeal or limiting the applicability thereof.
        (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. (Para 107)
       (ii) Civil Procedure Code, 1908-Sections 104, 100A and 4-Letters Patent of the High Court of Madras-Clause 15-Interpretation of-First respondent filed suit against appellant-Suit decreed-Execution petition filed by respondent, decree-holder-Property belonging to appellant was put to auction-Execution Application filed by appellant for setting aside court auction sale dismissed by the Execution Court-Appeal filed by Appellant against the order of Execution Court dismissed by Single Judge of Madras High Court by a judgment and order dated 8.10.1990-A Letters Patent Appeal purported to be in terms of Clause 15 of Letters Patent of Madras High Court filed by appellant-It was dismissed by a Full Bench of the High Court holding that in terms of sub-section (2) of Section 104 of the Code, appeal against an order passed by Appellate Court under Order VIII Rule 1 read with Section 104 of the Code, was not maintainable-Whether judgment of the Full Bench of the High Court is sustainable-(No)-Appeal was maintainable. (Paras 54 and 55)

JUDGMENT

(Minority Judgment)

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

BACKGROUND FACTS :

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

3. 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-a-vis Clause 15 of the Letters Patent.

That is how the matter is before us.

SUBMISSIONS :

4. Mr. R. Sundra

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2004 Supreme(SC) 1264

IMPORTANT POINTThe appeal under Clause 15 of the Letters Patent against an order passed by a Single Judge of the High Court setting in Appellate Jurisdiction is not barred by sub-section (2) of Section 104 of the Civil Procedure Code.

Cases Referred (35)

IMPORTANT POINT
The appeal under Clause 15 of the Letters Patent against an order passed by a Single Judge of the High Court setting in Appellate Jurisdiction is not barred by sub-section (2) of Section 104 of the Civil Procedure Code.