Under Clause 10 of the Letters Patent of the Patna High Court, there is a right of appeal from the judgment of a Single Judge of the High Court to a Letters Patent Bench in cases other than those expressly excepted in the clause, subject to the conditions prescribed in Rule 2 of Chapter VII of the Patna High Court Rules.

1. This is a memorandum of appeal presented by the respondent in First Appeal No. 134 of 1949 against the judgment of a learned single Judge of this Court dated 11-12-1957. By that judgment the learned Single Judge allowed the appeal preferred by the appellants and sent back the case to the court below for grant of letters of administration to the appellants on the usual terms. The argument of learned Counsel is that under Clause 10 of the Letters Patent of the Patna High Court his client has got a right in law to file an appeal against the judgment of a learned Single Judge and that no leave of the learned Single Judge is necessary for the filing of the appeal. The opposite view-point was presented on behalf of me respondents by Mr. Raghunath Jha, who submitted that there is no right of appeal under Clause 10 of the Letters Patent from the judgment of a learned Single Judge in this case; and in view of the fact that the learned Single has refused leave to the appellant it is not competent for the appellant to file a Letters Patent appeal.

2. The question at issue turns upon the proper construction of Clause 10 of the Letters Patent of the Patna High Court, which is in the following terms:

"10. And we do further ordain that an appeal-shall lie to the said High . Court of Judicature at Patna 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 resvisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Sec.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 Sec.108 of the 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 Sec.108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction 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."

3. It is also necessary in this connection to refer to Sec.108 of the Government of India Act, 1915, which states as follows:

"108. (1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more judges, or by division courts constituted by two of more judges, of the High Court, of the original and appellate jurisdiction vested in the court.

(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the Court, whether with or without Chief Justice, are to constitute the several division courts".

4. The provisions of Sec.108 of the Government of India Act, 1915 are reproduced in Sec.223 of the Government of India Act, 1935 and now in Article 225 of the Constitution, which states as follows:

"225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitt