( 43 ) ON the second point, on a consideration of the decision of Apex Court in Khimji's case (6 supra), the Full Bench held that the provisions of Order 43 Rule 1 C. P. C. are in addition to the provisions of Clause 15 of the Letters Patent and for the purpose of appealability to a Division Bench, the condition is that the order of the single judge must be a 'judgment'. It was held that section 104 (1) and 104 (2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent. The Full Bench at para 28 held as follows, the proper way of reconciling the several paragraphs in the judgment is to hold that the Supreme Court accepted that Clause 15 of the Letters patent gave an independent jurisdiction conferring right of Appeal against 'judgments' of learned single judges of the High Court whether passed in original jurisdiction or first appellate jurisdiction under Sec. 104 (1) read with Order 43 Rule 1 C. P. C. The only condition is mat these orders must amount to 'judgments' as understood in Clause 15 of the Letters Patent. Section 104 (2) is intended to bar further appeals under the Code and is not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent against judgments of learned single Judges whether passed in original or first appellate jurisdiction under Sec. 104 (1) read with order 43 Rule 1 C. P. C. If, therefore, both Sections 104 (1) and 104 (2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the letters Patent, it cannot, by any parity of reasoning, be held that Order 47 rule 7 (1) has also been intended to bar letters Patent Appeals against orders of learned Single Judges refusing to review an earlier order, provided the orders amounted to "judgments" as understood under Clause 15 of the letters Patent; Order 47 Rule 7 (1) CPC would bar appeals under the Code of civil Procedure to the extent where the orders refusing a review did not amount to "judgments". The ultimate test is whether the "order" is a "judgment" as understood in Clause 15 of Letters Patent. If it is a 'judgment' neither Sec. 104 (2) nor Order 47 rule 7 (1) would bar a Letters Patent appeal. Point No. 2 is decided accordingly.

( 44 ) THEREFORE, whether Order 47 Rule 7 (1) or Section 104 (2)CPC would bar a Letters Patent Appeal would depend upon the test whether the "order" impugned is a "judgment" within the meaning of Clause 15 of Letters Patent in the light of the tests laid down by the Apex court in Khimji's case (6 supra ). Order 47 rule 7 (1), in our view, bars appeals only where orders refusing to review do not amount to judgments. If it is a judgment within the meaning of Clause 15 of the letters Patent, Order 47 Rule 7 (1) CPC is not a bar for maintainability of writ appeal. If it were otherwise, no appeal would lie under the Letters Patent. The Full Bench had broadly agreed with the view taken by the Full Bench in Sattemma v. Vishnumurthy.

( 45 ) IN our view, if the order could be construed as a Judgment within Clause 15 of the Letters Patent, the appeal is maintainable under the Letters Patent, notwithstanding the fact that a bar has been created under order 47 Rule 7 (1) read with Section 104 (2) c. P. C. in view of the decision of the Apex court in Khimji's case (6 supra ). Even though an appeal against the order refusing to review the order is not permissible but such an appeal is permissible if it is construed to be a judgment within the meaning of Letters patent. Therefore, notwithstanding the fact that the appeal against an order refusing to review is not maintainable under the provisions of the Code, an appeal could still be permissible under Clause 15 of the letters Patent if it is a judgment under the said Clause.

( 46 ) IN Executive Officer, Group Temples, Guntur v. Dasaratha Rama Rao (2 supra) a division Bench consisting of M. S. Liberhan, c. J. , and A. S. Bhate, J. , held that no writ appeal lies against an

Click Here to Read the rest of this document