The main legal point established in the judgment is that Clause 36 of the Letters Patent applies to all appeals, regardless of the procedure to be adopted by the High Court.

1. The question referred to the Full Bench is Is the procedure to be adopted by the High Court in case of an equal division of opinion between the Judges to be governed by Clause 36 of the Letters Catent or by Section 98 of the Code of Civil Procedure?

2. The Letters Patent were issued in 1862 and were modified in 1865 but previously a section like Section 98 had been introduced into the Civil Procedure Code of 1859 by the Amending Act of 1861. Between 1865 and 1877, it could not be suggested that the Civil Procedure Code prevailed over the Letters Patent. It was obvious that the Letters Patent prevailed over the Civil Procedure Code. In case of difference of opinion between two Judges, the procedure in the Letters Patent was the only procedure to be followed. This was accordingly held in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart. (1870) 13 W.R. 209 A fresh Civil Procedure Code was passed in 1877 and another in 1882 and in these Codes Section 575 similar to Section 98 of the present Code was inserted as in the Code of 1859. As these Codes were after the Letters Patent, the question arose whether Section 575 superseded Clause 36 of the Letters Patent. That the Indian Legislature could alter or amend the provisions of the Letters Patent was clear from Clause 44 of the Letters Patent. Rut for Clause 44 the question would never have arisen. One would have thought that an attempt by the Indian Legislature to alter or amend the provisions of the Letters Patent would have been made in express and unambiguous terms and not left to be inferred by implication. No express attempt was made by the Legislature. Still apparently it was contended that impliedly the Indian Legislature did intend to supersede Clause 36 of the Letters Patent by Section 575 of the Civil Procedure Code. This argument prevailed in Appaji Bhivrav v. Shivlal Khubchand (1870) 13 W.R. 209 a decision of a Full Bench, Westropp, C.J., Melvill and West, JJ. They said:

We consider that the provisions of the Letters Patent in this respect have been superseded by Section 575 of the Act X of 1877--so far as regards cases to which Section 575 is applicable.

3. This was followed in Sri Gridhariji Maharaj Tickait v. Purushotum Gossami (1870) 13 W.R. 209 even in the case of an appeal from the Original Side of the High Court under Section 15 of the Letters Patent and in Hussaini Begam v. The Collector of Muzaffarnagar and other cases. But meanwhile the Privy Council held in Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 I.A. 4: I.L.R. 9 C. 482 (P.C.), that Clause 15 of the Letters Patent was not supreseded by Section 588 of the Civil Procedure Code. Accordingly in Chappan v. Moidin Kutti (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was held that Clause 15 of the Letters Patent was not controlled by any of the provisions of the Civil Procedure Code and this was applied in Sabapathi Chetti v. Narayanasami Chetti (1901) I.L.R. 25 M. 555: 11 M.L.J. 346 As a result of the group of cases beginning with Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was then held in Allahabad (where there is no Original Side) that Clause 36 of the Letters Patent was not superseded by Section 575 of the Civil Procedure Code. This was followed in Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M.1. though the latter case is from the Original Side. It will be noticed that the reasoning in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. 10 is perfectly general and if Clause 36 of the Letters Patent was not to he considered as superseded by Section 575 of the Civil Procedure Code, it must be so as regards all appeals whether the appeals themselves are under the Civil Procedure Code or under Clause 1 5 of the Letters Patent. In spite of this obvious consideration and the decision in Lachman Singh v. Rant Lagan Singh (1903) I.L.R. 26 A. 10 a practice arose in this Court according to which it was supposed that the only effect of the decision