ORDER

20.04.2005 — Heard further argument on the maintainability of the Letters Patent Appeal as the preliminary issue and the same is decided in the following manner.

2. Before dealing with that point of law, we may indicate that the present appeal under Clause 10 of the Letters Patent has been filed challenging to the judgment delivered by learned Single Judge of this Court in F.A.O. No.270 of 2003. That was an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908 (in short ‘C.P.C’) against the order granting temporary injunction to the plaintiffs-respondents under Order 39, Rules 1 and 2, C.P.C., vide Interim Application No.12 of 2003 arising in Civil Suit No.38 of 2003 of the Court of Civil Judge (Sr. Divi¬sion), Rairangpur. Learned Single Judge in the impugned judgment has confirmed to that order of injunction and in the result dismissed the appeal. As against that judgment, this Letters Patent Appeal has been filed.

3. At the outset, Mr. Indrajit Mohanty, learned counsel appearing for the Plaintiffs-Respondents raised objection to the maintainability of the appeal and yesterday, prayed to the Court to decide that as the preliminary issue. Mr. R. K. Mohanty, learned counsel appearing for the appellant consented for hearing on that issue as preliminary issue. Thus, yesterday, we heard the matter in part.

4. In support of their rival contention on the maintain¬ability of the appeal, both the parties rely on the case of P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and others, A.I.R. 2004 S.C.5152. According to Mr. Indrajit Mohanty, learned counsel for the respondent after amendment of Section 100-A, C.P.C. by Act 22 of 2002 with effect from 01.07.2002, jurisdiction con¬ferred under Clause 10 of the Letters Patent applicable to Orissa High Court is no more invokable in an appeal of the present nature and that position of law is clear from the ratio, per majority view, in the case of Sathappan (supra). Mr. R. K. Mohan¬ty, learned counsel for the appellant on the other hand argues that Section 100-A, C.P.C. has no application to the present appeal and the provision of law in Sections 4 and 104(1), C.P.C. read with Clause 10 of the Letters Patent have remained unchanged by the recent amendment of C.P.C. and that the majority view in the case of Sathappan (supra) having the effect of binding precedent, lays down the law in support of maintainability of Letters Patent Appeal.

5. We have gone through the above noted citation and the provisions of law from the C.P.C. It is noted in paragraph 2 of the cited decision that :

“We are aware of the fact that Clause 15 of the Letters Patent applicable to Madras High Court was similar to Clause 10 applicable to Orissa High Court.”

Therefore, we accept the ratio in the case of Sathappan (supra) for consideration of maintainability of this Letters Patent Appeal under Clause 10 of Letters Patent applicable to Orissa High Court.

6. F.A.O. No.270 of 2003 was preferred by the appellant in accordance with the provision in Section 104(1), C.P.C. read with Order 43 Rule 1, C.P.C. and not under Section 96 read with Order 41 Rule 1, C.P.C. Thus, provisions in Section 100 or 100-A, C.P.C. are not applicable to this appeal. Once we find that such is the position of law, then we find from the ratio in the case of Sathappan (supra) that :

“22. Thus the unanimous view of all Courts till 1996 was that Section 104(1), C.P.C. specifically saved Letters Patent Appeals and the bar under S.104(2) did not apply to Letters Patent Appeals. The view has been that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words ‘Letters Patent’ but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred."

Again, in paragraphs-29, 30, 31 and 32 Their Lo