Section 104(2) of the Code of Civil Procedure prohibits an appeal from any order passed in appeal under section 104.

Headnote:
LETTERS PATENT APPEAL - MAINTAINABILITY - SECTION 104(2) OF THE CODE OF CIVIL PROCEDURE - INTERPRETATION - APPLICABILITY TO LETTERS PATENT APPEALS - NO APPEAL LIES FROM ANY ORDER PASSED IN APPEAL UNDER SECTION 104 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:

The plaintiffs-appellants filed a suit for injunction against the defendants in the City Civil Court at Bombay. During the pendency of the suit, the plaintiffs applied for interim injunction, which was rejected. The plaintiffs filed an appeal against the order of rejection, which was also dismissed. The plaintiffs then filed a Letters Patent Appeal against the dismissal of the appeal against the order.
Finding of the Court:

The court held that the Letters Patent Appeal was not maintainable because section 104(2) of the Code of Civil Procedure prohibits an appeal from any order passed in appeal under section 104.
Issues: Whether a Letters Patent Appeal is maintainable against an order passed in appeal under section 104 of the Code of Civil Procedure.
Ratio Decidendi: The court held that section 104(2) of the Code of Civil Procedure is a prohibitive provision and must be construed strictly. The plain reading of the section shows that no appeal lies from any order passed in appeal under section 104. The court also held that the Letters Patent do not override the provisions of the Code of Civil Procedure and that the Letters Patent Appeals are also governed by section 104(2).
Final Decision: The court dismissed the Letters Patent Appeal as not maintainable.

JUDGMENT - V.S. DESHPANDE, J.:---This Letters Patent Appeal is directed against the rejection of appeal against order being Appeal No. 905 of 1981. It is not necessary to give detailed facts of the present appeal.

2. The plaintiff-appellants herein filed a Suit No. 6279 of 1981 in the City Civil Court at Bombay for obtaining injunction against the defendants. During the pendency of the said suit, the plaintiffs applied for interim injunction. That prayer for interim injunction was rejected by the City Civil Court at Bombay. Against the rejection of that order, the plaintiffs filed an appeal against order and that appeal against order was dismissed on November 26, 1981. It is this order which is being challenged in this Letters Patent Appeal by the plaintiffs-appellants.

3. At the time of admission, a preliminary objection is taken that the Letters Patent Appeal is not maintainable. In all such matters, which came before us prior to this one, we had held, so by our orders because, in some matters the Counsel conceded that the appeals are not maintainable.

4. In this appeal, Mr. Kapadia, the Learned Counsel, who appears for the appellants, has addressed the arguments in support of the case that the Letters Patent Appeal is maintainable. Mr. Kapadia argues that Clause 16 of the Letters Patent creates a forum and Clause 16 provides an appeal against the order passed by the Single Judge and it is independent of the Code of Civil Procedure. Mr. Kapadia conceded that there are no separate rules governing the Letters Patent Appeals in regard to the hearing and procedure. It is contended by Mr. Kapadia that the Letters Patent is a special law and being a special law it does not affect by the provisions of section 104 of the Code of Civil Procedure or it is not controlled by section 104 of the Code.

5. The preliminary objection is formulated on the basis that section 104(2) of the Code of Civil Procedure prohibits such an appeal. Section 104(2) reads thus:

"104(2).---No appeal shall lie from any order passed in appeal under this section".

It is undisputed that the present appeal is certainly an appeal filed against the order under section 104 of the Code of Civil Procedure, read with the provisions of Order 43 Rule 1 of the Code. Under the Code of Civil Procedure, the appeals are governed by three kinds of provisions only, the first kind of provision is under section 96 of the Code of Civil Procedure, i.e. Appeal from original decree; the second provision of appeal i.e. Second Appeal against the appellate decree under section 100 of the Code of Civil Procedure and the third under section 104 of the Code, which governs the appeal against the order.

6. It is not disputed by Mr. Kapadia that this appeal, which was filed before the Single Judge, is governed by section 104 of the Code of Civil Procedure because the same was directed against the order of dismissal of Notice of Motion at the stage of asking interim injunction. It is certainly governed by the provisions of Order 43, Rule 1 of the Code.

7. As far as Clause 16 of the Letters Patent is concerned, in our opinion, the provisions of section 104 are attracted and it is applicable to the Letters Patent Appeals also. Because the Letters Patent Appeals cannot be said to be an exception and cannot override the provisions of the Code of Civil Procedure.

8. Under Clause 37 of the Letters Patent it is provided that the Letters Patent will be guided by Code of Civil Procedure, while making the rules by the High Court and can be altered by the component legislature. In this connection, it may be noted that right of appeal is not inherent right of the aggrieved party. It is the creature of statute and if it can be taken away by statue, no party can claim that this remedy must be available to the party. Right of appeal is not attached to the litigation unless it is provided by law. There must be a clear authority for filing appeal and if the authority is against filing the appeal that legal provisio

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