Section 104(2) of the Code of Civil Procedure, 1908, bars a further appeal from an order passed in appeal under section 104, and this bar prevails over the provisions of clause 15 of the Letters Patent of the Calcutta High Court, which provides for internal appeals in the High Court.

This is an appeal from an order made on 3.2.93. by a Single Judge (Phukan, J) in MA (F) No. 2 of 1991. A few facts leading to this appeal may briefly be stated. In respect of the land described in the schedule to plaint, the plaintiff-appellant instituted TS No. 14 of 1990 in the Court of Assistant District Judge (2) Guwahati for declaration of titte, confirmation of possession and permanent injunction. In that suit the plaintiff made an application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure for restraining the defendants from disturbing the possession of the plaintiff. The trial Court made an order on 7.3.90 granting ex parte ad interim injunction directing the defendant-respondents to maintain the status quo of the suit property. The order was vacated by an order dated 3.1.91. Being aggrieved by that order, the plaintiff-appellant filed MA (F) No 2 of 1991 in this Court. The learned Single Judge dismissed the appeal on 3.2.93. Against that order the plaintiff now appeals.

2. Shri DN Choudhury, learned counsel for the respondents, has questioned the maintainability of the appeal under Letters Patent in view of sub-section (2) of section 104 of the Code. Shri JN Sarma, learned counsel for the appellant, has submitted that the bar under sub-section (2) of section 104 shall not be operative in the present case in view of section 4 of the Code. 3 The question which arises for consideration is whether the present appeal is maintainable under clause 15 of the Letters Patent. The relevant portion of clause 15 of the Letters Patent may be extracted thus :

''Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction-And We do further ordain that an appeal shall lie to the said High Court 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 ) of one Judge of the said Court 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 made ..in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the 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; ...”. (emphasis added)

Clause 15 provides for internal appeals in the High Court in respect of an appeal from the Court of the original jurisdiction to the High Court in its appellate jurisdiction and also from the judgment of one Judge on the original side of the High Court. Clause 15 contains two parts. The first part relates to a second appeal, if arises from the District Court subordinate to the High Court, or first appeal from the judgment of one Judge on the original side of the High Court. An appeal in the second part is a third appeal, where the Judge who passed the judgment declares that the case is a fit one for appeal. The third appeal which was available against the decision or judg­ment of a Single Judge, in certain cases, is now taken away by section 100A of the Code. Section 100 A was inserted by the Amending Act 104 of 1976. Section 100A provides that notwithstanding contained in any Letters Patent for any High Court where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal. After incorporating section 100A, what remains in clause 15 is only the first part of it.

4. The question then is, - Whether section 104 and Order 43, Rule 1, shall be applicable in internal appeals in the High Court? Sub-sec