An order dismissing an application to restore a review application is not appealable under Section 100-A and Section 47 Rule 7 C. P. C.

( 1 ) THIS Letters Patent Appeal is directed against the dismissal of M. C. C. No.-634 of 1988. The Division Bench which heard the matter has referred the same to a Full Bench.

( 2 ) THE first appellant's husband filed a civil suit seeking reliefs of declaration, permanent injunction regarding part of the suit property and possession regarding the remaining part of the suit property. The suit was dismissed. First appeal and second appeal were also dismissed. Thereupon, the first appellant's husband filed an application under Order 47, Rule 1, C. P. C. being M. C. C. No. 442/87. He died during the pendency of the application and the widow and daughter were impleaded as supplemental applicants. The learned single Judge dismissed the review application for default of appearance of the applicants and want of prosecution. Thereupon, they filed an application, M. C. C. No. 634/88 seeking to set aside the order of dismissal for default and seeking restoration of M. C. C. No. 442/87. The learned single Judge dismissed the application on merits holding that there was no sufficient cause to set aside the earlier order of dismissal. It is this order which is now challenged under Clause 10 of the Letters Patent.

( 3 ) ASSUMING that in view of the language of Clause 10 of the Letters Patent, an appeal may lie against an order of the nature sought to be challenged in this appeal, the question is what is the impact of Sec. 100-A and Sec. 47 Rule 7 C. P. C. on the aspect of maintainability of the Letters Patent Appeal.

( 4 ) WE will briefly refer to the decision placed before us. In L. P. A. No. 151 / 86, this Court held that an L. P. A. is not maintainable against an order dismissing an application to restore an application seeking review of the judgment disposing of the second appeal. The Court placed reliance on the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786.

( 5 ) LEARNED counsel for the appellants has placed considerable reliance on the decision in Shanti Kumar R. Canji v. The Home Insurance Co. of New York, AIR 1974 SC 1719 which considered Clause 15 of the Bombay Letters Patent which is pari materia of Clause 10 of the Letters Patent of Nagpur High Court which governs the M. P. High Court. There was a suit filed on the original side of the Bombay High Court. An application seeking amendment of the plaint for incorporating a new relief which world have been barred by limitation on that date, was filed and allowed by the learned single Judge. Clause 15 of the Letters Patent permits L. P. A. against judgment of the single Judge. The Supreme Court held that if the order affects the merits of the action between the parties by determining some right or liability, Letters Patent Appeal may lie. It was further held that since the relief sought to be incorporated by a belated amendment was barred by limitation and since the amendment which was allowed related back to the date of suit, the defendant would have been deprived of the opportunity of taking the defence of limitation and, therefore, the order determined the right or liability of the parties and, therefore, the order amounts to a judgment and an appeal was permitted.

( 6 ) IN Shall Babulal Khimji v. Jayaben, the Court held that although Letters Patent is a special law, certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a trial Judge to a larger Bench and the combined reading of Sections 4, 5, 104 and Order 49 Rule 3 of C. P. C. lead to the irresistible conclusion that S. 104 read with Order 43, Rule 1 clearly applies to the proceedings before the trial Judge of the High Court and these provisions expressly authorise and create a forum for appeal against order falling under various clauses of Order 43, Rule 1 to a larger Bench without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. It was further held that even assuming that Or