K. Vinod Chandran, CJ.—The Registry has noted a defect of the instant LPA not been maintainable for reason of it arising out of a civil review against an order in first appeal. The learned counsel for the appellants relied on a decision of the Hon’ble Supreme Court specifically relating to the maintainability of Letters Patent Appeal under Clause 10, as provided in Appendix-E of the Rules of the High Court at Patna, 1916. Therein, the issue was with respect to the maintainability of an appeal from the order passed by a learned Single Judge of the Patna High Court in a first appeal against the order of the Tribunal under Section 140 of the Motor Vehicles Act, 1988, as it then stood. It was held so in Paragraph 8 of the decision in Chandra Kanta Sinha vs. Oriental Insurance Co. Ltd. and Ors; (2001) 6 SCC 158, which is extracted hereunder;—

8. It can thus be seen that for purposes of appeal, under this clause, judgments of one Judge of the High Court of Patna are classified in two groups. In the first group fall judgments from which appeal will lie to the said High Court. From this group two categories of judgments of one Judge of the High Court are excluded (i) a judgment passed in exercise of the appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a court subject to the superintendence of the said High Court, that is, where a judgment is passed by a Judge of the High Court in second appeal, no letters patent appeal lies in the said High Court; and (ii) from an order or judgment made in exercise of the revisional jurisdiction. The second group takes in judgments of one Judge passed in second appeal where the Judge who passed the judgment declares that the case is a fit one for appeal. But now Section 100-A of the Code of Civil Procedure bars an appeal under the Letters Patent from the judgment of one Judge of a High Court passed in second appeal even with the leave of the Judge who passed the judgment.

2. Hence, the exclusion is with respect to an appeal from a decree or order in a second appeal and from an order or judgment made in exercise of the revisional jurisdiction. In fact, it was held that though Clause 10 provides for an appeal, even against an order passed in a second appeal, if the Judge who passed the judgment declares the case to be a fit one for appeal; it cannot be maintained since section 100A of Code of Civil Procedure, 1908 (for brevity “CPC”) bars an appeal from a judgment in a second appeal by a learned Single Judge.

3. Similarly, the decision in New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and Ors; (1997) 3 SCC 462 was dealt with and it was held that the same was not applicable on the facts in Chandra Kanta Sinha (supra) which was an appeal under the Motor Vehicles Act, 1988.

4. We extract Paragraph 13 which dealt with New Kenilworth Hotel (P) Ltd;—

13. In New Kenilworth Hotel (P) Ltd. case [(1997) 3 SCC 462] aggrieved by the order of the trial court passed under Order 39 Rules (1) and (2), an appeal under Section 104(1) CPC read with Order 43 Rule 1(r) was filed before the High Court which was disposed of by one Judge of the High Court. From the order/judgment of one Judge, a letters patent appeal (second appeal) was filed before the Division Bench under clause 10 of the Letters Patent of the Orissa High Court. The Division Bench of the High Court held that the letters patent appeal was not maintainable. Having regard to the provision of Section 104(2), the appeal before the Division Bench was barred. On appeal to this Court it was held: (SCC p. 466, para 10)

“As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing of second appeal under sub-section (2) of Section 104, the right of appeal provided under clause 10 of the Letters Patent would not be available.”

Therefore, reliance on the judgment of this Court in New Kenilworth Hotel (P) Ltd. case [(1997) 3 SCC 462] will be of