JUDGMENT

1. A difference of opinion has arisen between the members of this Bench (vide our separate judgments), it has been argued by the learned Advocate for the appellant that this appeal is governed by Clause 27 of the Letters Patent of 1866 and not by Section 98 of the Code of Civil Procedure. Section 98(2) nine as follows:

Where there is no such majority which concurs in a judgment varying or reversing a decree appealed from, such decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two Judges belonging to a court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may State the point of law, upon which they differ, and the appeal shall then be heard upon that point only by one or more of the other Judges and that such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

2. This rule is applicable not only first to appeals but also to appeals from the appellate decrees of the Subordinate Courts (vide Section 108 of the Code of Civil Procedure).

3. Where an appeal has been filed to this Cou