Provision for preferring appeal must be provided by Statute expressly.

KalyanJyoti Sengupta, CJ.

1. A third party has made an application for leave of this Court to prefer the appeal against the judgment and order of the learned single Judge, dt.26.4.2010 rendered in Writ Petition No.20967 of 2009.

2. A question has come up before this Court what is the legal provision to make such application, as general perception of the Court and common people is that an appeal can be preferred by a party, not a third party. But, one has to visualize the situation, if sometimes the judgment and decree or order unmindfully affects a third party and decision is rendered on adjudication against him, what would be his remedy, for, a person cannot ignore the judgment of the Court below, under law, to seek remedy, not taking the law in his own hands. Vide Rule 24 of the Writ Proceedings Rules, 1977 framed by this Court, a provision has been made for applicability of provisions of the Code of Civil Procedure (CPC). The Constitution of India does not provide for appellate provision in relation to proceedings under Article 226 of the Constitution of India. Provision for preferring appeal must be provided by the Statute expressly and we are to look therefor.

3. This Court has been established substantially as a successor Court of the original Madras High Court which was constituted by Letters Patent 1862 followed by 1865. Clause 15 of the Letters Patent of 1865 provides for intra Court appeal. We, therefore, set out Clause 15 of Letters Patent, 1865:

“15. Appeal from the Courts of Original Jurisdiction to the High Courts in its appellate jurisdiction:- And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras 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 revisional jurisdiction, and not being a sentence or order passed or made in the 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 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 1st 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.”

4. However, when this Court’s Letters Patent was issued, Constitution was not there, consequently, writ proceedings could not be thought off. This Letters Patent has been made applicable to this Court also and still it is continuing to apply appeal provision in a fit case as intra court appeal. Therefore, the aforesaid Clause – 15 govern to entertain and decide the appeal by a forum in connection with writ proceedings also. But right to prefer appeal in the writ proceedings is governed by Section 96 of Code of Civil Procedure, which is reproduced as follows, as Writ Rule of this Court has made this provision applicable.

96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to he