An appeal will only lie against those orders passed by a single judge which are covered by Section 104 read with Order 43 Rule 1 Civil Procedure Code and no appeal will lie against those orders which are outside this provision.

( 1 ) THIS order will dispose of S. C. A. 229 and 235 of 1972.

( 2 ) THIS is an application under Article 133 (1) (a) (b) and (e) A of the Constitution of India against the judgment of Full Bench dated March 2, 1972.

( 3 ) IN a suit which was being tried by a learned single judge of this Court under its ordinary original civil jurisdiction, it was held that the suit with respect to two khasra numbers out of four was maintainable. The defendant appellant filed an appeal against this order of the learned single judge. The question raised before the bench was that as the order of the learned single judge was not one of those orders which were specified in Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908, the appeal was not maintainable. The appellant had, however, contended that the appeal was maintainable in view of Section 10 (1) of the Delhi High Court Act (26 of 1966) (hereinafter called the Act) which provided that where a single judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of Section 5, an appeal shall lie from the judgment of the single judge to a Division court of that High Court. As the matter raised an important question of law the appeal was REFERRED TO to a larger bench.

( 4 ) BEFORE the bench it had been argued by the appellant that in order to find out whether an appeal lies against the order passed by a single judge in exercise of ordinary original civil jurisdiction, all that had to be found out was whether it was a judgment and in order to find out whether it was a judgment or not, the test laid down by the various High Courts when interpreting the expression judgment to be found in the Letters Patent constituting the High Courts was to be- looked into. In our judgment, we noticed that right upto the passing of the Act there was no authoritative pronouncement of precise definition of the term judgment in the Letters Patent. We REFERRED TO to the fact that prior to the passing of the Act in the part of the territory the law as to which orders were appealable was well settled and that this depended solely on finding whether the orders were those falling in Section 104 read with Order 43 Rule I of Civil Procedure Code. We, therefore, took the view that when the legislature provided in Section 10 (1) of the Act that an appeal shall lie from the judgment of the single judge to the Division Court it must have meant to refer to the expression judgment in the same term as defined in the Civil Procedure Code and to continue existing law and practice. We also held that to accept the contention of the appellant that the test given in various decisions under the Letters Patent should be applied to interpret the word judgment in Section 10 (1) of the Act is to impute illogical intention to the legislature and suggest that it wanted to create confusion and conflict in this area which had been free from it uptill then. We also held that Section 10 (1) of the Act was not meant to provide for an appeal against the order which has never been held appealable in this territory before. We consequently finally held that apart from the order which has the force of a decree an appeal will only lie against those orders passed by a single judge which are covered by Section 104 read with Order 43 Rule 1 Civil Procedure Code and no appeal will lie against those orders which are outside this provision. As the impugned order of the learned single judge was admittedly not one of the orders specified in Section 104 Read with Order 43 Rule 1 C. P. C. the same could not be held to be a judgment within the meaning of Section 10 (1) of the Act and, therefore, no appeal was competent. We consequently dismissed the appeal.

( 5 ) THIS application was filed on May 8, 1972. Clause (1) of Article 133 of the Constitution of India has been substituted by a new clause (1) by the Constitution (Thirtieth Amendment) Act, 1972, which came into force from