JUDGMENT 1. The appellants had preferred this letters patent appeal against the judgment and decree dated 15th of February, 1985 passed by learned Single Judge of this Court in Civil First Appeal No.5 of 1977. 2. The brief facts are that a Will was claimed to have been executed by one Durga Prasad in favour of respondent No. I on 15th of November, 1969. The respondent Babulal Chaudhary had filed a petition under section 276 of the Indian Succession Act for grant of a probate before District Judge, Guna, on 18th of January, 1971. The District Judge of Guna refused to grant a probate by his judgment dated 10th of November, 1976 giving certain reasons. Against that judgment first appeal was preferred before this Court being appeal No.5 of 1977 which was heard and decided by the then Hon. Mr. Justice Rampal Singh on 15th November, 1985 whereby the judgment of District Judge was set aside and learned Single Judge of this Court allowed the petition and granted a probate in favour of the respondent. Against that judgment of the learned Single Judge the present letters patent appeal was preferred. At the time of hearing of this letters patent appeal before a Division Bench of this Court consisting of Hon. Mr. Justice Dr. T.N. Singh and Hon. Mr. Justice R.C. Lahoti, a preliminary objection was raised by the respondents that the letters patent appeal was not maintainable as no letters patent appeal could lie against the judgment of a single Judge granting probate on an appeal against the order of District Judge, under section 299 of the Indian Succession Act, 1925. 3. The Division Bench of this Court heard this preliminary objection and Brother Dr. T.N. Singh, J. held that the preliminary objection was up held and he directed by his judgment dated 2nd February, 1990 that the letters patent appeal was not maintainable and he directed it to be dismissed. 4. The other member of the Division Bench, Brother R.C. Lahoti, J. did not agree with Brother Dr. T.N. Singh, J. and gave a separate judgment holding reasons that the letters patent appeal against judgment of Single Judge alongwith the appeal under section 299 of the Indian Succession Act was maintainable before a Division Bench of this Court under Clause 10 of Letters Patent. 5. T.N. Singh, J. and gave a separate judgment holding reasons that the letters patent appeal against judgment of Single Judge alongwith the appeal under section 299 of the Indian Succession Act was maintainable before a Division Bench of this Court under Clause 10 of Letters Patent. 5. Since there was a difference of opinion between the two Brother Judges of the Division Bench, the matter was placed before Hon'ble the Chief Justice at Jabalpur. Hon'ble the Chief Justice was pleased to refer the matter to Third Judge for recording a finding on the preliminary point. Hon'ble the Chief Justice had earlier nominated Hon'ble Mr. Justice Shacheendra Dwivedi to hear the matter as a third Judge. Some dates were fixed. Ultimately, on 7th of October, 1994 the learned third Judge, Hon. Mr. Justice Shacheendra Dwivedi released this case as parties were said to have been known to His Lordship as his relations. The matter was again placed before the Hon'ble Chief Justice, who nominated me to hear the matter vide His Lordship's order dated 29th of November, 1994, that is, how this matter had come before me. 6. I have heard learned counsel for the appellants, Shri R.D. Jain, learned counsel for the respondents, Shri P.L. Dubey and perused the entire record. 7. Before dealing with the matter in controversy, it is relevant to refer the different provisions of Indian Succession Act and the Code of Civil Procedure which are applicable in the present case. 8. Section 251 of the Indian Succession Act deals with the grant of letters of administration in a particular suit. Section 263 deals with the revocation or annulment of grant of letters of administration. Then Chapter IV of the Indian Succession Act (hereinafter called the Act) deals with the powers and jurisdiction of District Judge in granting and revoking the probates and letters of administration. Section 263 deals with the revocation or annulment of grant of letters of administration. Then Chapter IV of the Indian Succession Act (hereinafter called the Act) deals with the powers and jurisdiction of District Judge in granting and revoking the probates and letters of administration. Section 266 of the Act provides as follows :- "The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters concerned therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court." Then the Act provides for appeal against any order passed by the District Judge to the High Court under section 299 of the Act in the following terms,:- "Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to appeals." 9. Therefore, under section 299 an appeal lies to the High Court against any order passed by the District Judge under the Act. 10. Now, the question was as to whether if an appeal is heard by a Single Judge and the same is decided granting or refusing for grant of probate, whether an appeal lies to a Division Bench under Clause 10 of Letters Patent? 11. On this point the main hurdle is provided under section 104 of the Code of Civil Procedure which is quoted below :- "104. 11. On this point the main hurdle is provided under section 104 of the Code of Civil Procedure which is quoted below :- "104. Orders from which appeal lies -- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in body of this Code or by any law for the time being in force, from no other orders:-- 1 (**) 2/(ff) an order under section 35A;/ 3/(ffa) and order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed 'by rules; 2/ Provided that no appeal shall lie against any order specified in clause (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made./ (2) No appeal shall lie from any order passed in appeal under this section. "Reference was also made to section 100-A of the Code which provides that no letters patent appeal shall lie against the judgment of the Single Judge of the High Court in a case where the Single Judge has heard the appeal from an appellate decree or order. This section does not apply to the facts of the present case as the order passed by the District Judge refusing to grant probate is not an order under any appellate proceeding. 12. The controversy as to whether the letters patent appeal under Clause 10 of the Letters Patent against the judgment of a Single Judge is barred under sub-section (2) of section 104 of the Code granting or refusing to grant probate in an appeal filed under section 299 of the Indian Succession Act, is long standing. This question was first dealt with by Allahabad High Court in the case of Umrao Chand v. Brindawan, reported in (1895) 17 Alld. 475. This question was first dealt with by Allahabad High Court in the case of Umrao Chand v. Brindawan, reported in (1895) 17 Alld. 475. It was held therein that an appeal lies under the Letters Patent from the decision of a Single Judge of the High Court on appeal from the order of the District Judge granting or refusing probate. 13. On the other hand, Patna High Court has held in the case of Basudeo Narain Singh and others v. Prayag Dutt Narain Sahi and others, reported in AIR 1962 Patna 69, that no appeal lies under Clause 10 of Letters Patent against an order passed under section 301 of the Act by a Single Judge of the High Court as the High Court passes such an order in the discretionary powers of the Court and was not a judgment under Clause 10 of the Letters- Patent. The judgment of the Patna High Court was in respect of order passed under section 301 of the Act and not under section 299 of the Act. The Allahabad High Court has first dealt with for maintainability of an appeal under Clause 10 of the Letters Patent against an order passed under section 299 of the Act. This controversy continued thereafter and different Courts had taken different views in the matter. 14. The reference was made to the provisions of sections 4, 104, 106 and Order XLIII of the Code of Civil Procedure. Dr. T.N. Singh, J., in his judgment placed reliance on the case of Rajmata Vijayaraje Scindia reported in 1988 JLJ 86 , in which it was held that letters patent appeal under Clause 10 would not lie in a case when the appellant had failed in the rule suit in respect of a property covered by the Will. Brother, T.N. Singh, J. also referred to the cases of Ghanshyam, reported in 1987 (II) MPWN 196 and Madangopal reported in 1986 JLJ 806 . 15. Brother, Dr. T.N. Singh, J., while interpreting section 299 of the Act held that the order passed in this section could not be a decree in any view of its meaning. Brother, T.N. Singh, J. also referred to the cases of Ghanshyam, reported in 1987 (II) MPWN 196 and Madangopal reported in 1986 JLJ 806 . 15. Brother, Dr. T.N. Singh, J., while interpreting section 299 of the Act held that the order passed in this section could not be a decree in any view of its meaning. Reference was made to the cases of A.K. Gopalan reported in AIR 1950 SC 27 , Ashwini Kumar Ghose, reported in AIR 1952 SC 369 , V.O. Tractoroexport, Moscow v. Tarapore & Company, reported in (1969) 3 SCC 562 , C.I.T. v. T. V. Sundram Iyangar (P) Ltd., reported in (1976) 1 SCC 77 , Umed v. Raj Singh reported in (1975) 1 SCC 76 . 16. Brother, T.N. Singh, J. further observed that different types of orders made by District Judge in a probate proceedings were appeallable under section 299 of the Act. According to him, any appeal against an order passed under section 299 of the Act lies only under section 104 of the Code of Civil Procedure. Reliance was placed to the cases of Hindustan Cooperative Society; reported in AIR 1931 PC 149 and State of M.P. v. M. V. Narsimham, reported in AIR 1975 SC 1835 . 17. Brother, T.N. Singh, J. did not accept the dictum laid down in the case of Umraochand by Allahabad High Court, as referred above, on the ground that in the old Code there was no parallel provision under section 104 of the Code of Civil Procedure, 1908, but in fact there was a parallel provision under section 588 of the old Code. 17. On the other hand, learned counsel for the appellant, Shri R.D. Jain, placed reliance on the cases of National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd. reported in AIR 1953 SC 357 and Maganlal v. M/s. Jaiswal Industries, Neemuch, reported in (1989) 4 SCC 344 , wherein it was held that the letters patent appeal from the decision rendered in the appeal by learned Single Judge of Bombay High Court was maintainable. The decision in this cases was in appeal under section 76 of the Trade Marks Act. Brother, T.N. Singh, J. distinguished these cases on the ground that section 76 of the Trade Marks Act was differently drafted than section 299 of the Indian Succession Act. 18. In the case of National Telephone Co. The decision in this cases was in appeal under section 76 of the Trade Marks Act. Brother, T.N. Singh, J. distinguished these cases on the ground that section 76 of the Trade Marks Act was differently drafted than section 299 of the Indian Succession Act. 18. In the case of National Telephone Co. Ltd. v. Postmaster-General reported in (1913) AC 546 the House of Lords expressed the dictum as below:- "When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches." 19. It is necessary to quote Clause 10 of the Letters Patent at this stage :- "10. Appeal to the High Court from Judges of the Courts - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur 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 the appellate jurisdiction by a Court subject to the superintendence of the said High Court,. . . . . . ., pursuant to section one hundred and eight of the Government of India Act, 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 or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India Act, made in the exercise of 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; but that the right of appeal from other judgment of Judge of the said High Court or of such Division Court shall be to Us, Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided". 20. Under this clause of the Letters Patent, as provided that an appeal shall lie to the Division Bench of the said High Court from the Judgment of the Single Judge made in exercise of appellate jurisdiction in respect of a decree or order by a Court subject to the superintendence of the said High Court. 21. 20. Under this clause of the Letters Patent, as provided that an appeal shall lie to the Division Bench of the said High Court from the Judgment of the Single Judge made in exercise of appellate jurisdiction in respect of a decree or order by a Court subject to the superintendence of the said High Court. 21. The question is as to whether the order passed by the learned Single Judge Brother Ram Pal Singh, J. granting probate reversing the order of the District Judge is judgment or not; and the second question arises as to whether the appeal provided under section 299 of the Act necessarily lies under the provisions of section 104 of the Code of Civil Procedure wherein appeals are provided against orders or the appeal so provided under section 299 of the Act, is independent of section 104 of the Code and may be taken to lie under section 96 of the Code. 22. In the case of Shafiulla v. MPSRTC (LPA No. 16/86, dated 23.8.1989) relying on Pushkar Nath's case reported in AIR 1987 SC 1311 , it was held that Letters Patent appeal could lie against a judgment of a Single Judge passed under Article 226 of the Constitution. In the case of Shah Babulal Khimji reported in AIR 1981 SC 1786 , as held in the case of Chunnilal Laxman Prasad reported in 1987 JLJ 377 and Rajmata Vijayaraje Scindia's case, referred above, it was held that provisions of section 104 read with Order XLIII rule 1 of the Code of Civil Procedure apply even to internal appeals i.e. Letters Patent appeal in the High Court. In Umaji's case reported in AIR 1986 SC 1272 the term "Judgment" of Clause 15 of Letters Patent of Bombay High Court was construed and held that although there was no qualification or limitation as to the nature of jurisdiction exercised by a Single Judge while passing the judgment, an intra-Court appeal from such a judgment would lie if that is not barred by any statute. 23. Differing from the observations made by Brother, T.N. Singh, J., Brother R.C. Lahoti, J. held that letters patent appeal would lie against a judgment of the Single Judge on an appeal under section 299 of the Indian Succession Act. 24. 23. Differing from the observations made by Brother, T.N. Singh, J., Brother R.C. Lahoti, J. held that letters patent appeal would lie against a judgment of the Single Judge on an appeal under section 299 of the Indian Succession Act. 24. Brother, R.C. Lahoti, J. relied on the case of Umaji v. Smt. Radhikabai reported in AIR 1986 SC 1272 in which Clause 15 of the Letters Patent of Calcutta High Court was construed and it was held as follows :- "The position which emerges from the above discussion is that under Clause 15 of the Letters Patent of the Chartered High Courts from the judgment (within the meaning of that term as used in that clause) of a single Judge of the High Court an appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing his judgment, provided an appeal is not barred by any statute (for example section 100A of the Code of Civil Procedure, 1908) and provided the conditions laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are: (1) that it must be a judgment pursuant to section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15." 24-A. The judgment, pursuant to section 108 of Government of India Act was interpreted in the case of National Sewing Thread Co., Ltd., Chidambaram v. James Chadwick and Bros Ltd. reported in AIR 1953 SC 357 . The word "Order" u/s. 299 of the Act came up for interpretation by Allahabad High Court in the case of Smt. Rajeshwari Mishra v. Markandeshwar Mahadev Trust reported in AIR 1965 All. 211 wherein it was held :- "The word "every" in S. 299 governs not the word "order" but the phrase" order made by a District Judge by virtue of the powers hereby conferred upon him"; it is not that every order made by a District Judge is subject to appeal; it is every order made by him by virtue of the powers conferred by the provisions of the Act that is subject to appeal. Appealability is a matter of statute and in the absence of a statutory provision there is no right of appeal. The words "hereby conferred" in S. 299 mean" conferred by the provisions of this Act." In that case the scheme of the Act was examined and the reference to the Code was found with a general provision has been made that an appeal will lie against the order passed u/S. 299 of the Act, to the High Court and procedure for hearing such an appeal has to be adopted as provided in the Code. Brother, Lahoti, J. held that an appeal to the High Court lies by virtue of section 299 of the Act and not under section 104 of the Code. He placed reliance on the case of Maganlal v. M/s. Jaiswal Industries. Neemuch (1988) 4 SCC 344, referred above. 25. According to Brother, Lahoti, J. an appeal before learned Single Judge against the order of District Judge u/s. 299 of the Act was not an appeal under any provisions of section 104 or Order XLIII rule 1 of the Code of Civil Procedure. Reliance was also placed to a Full Bench case of Allahabad High Court in the case of Balkishan Bai v. V. Gobind Nath Tiwari reported in (1890) 12 All. 129, Mitthulal and others v. Badri Prasad and others, reported in 1981 JLJ 21 = AIR 1981 MP 1 and Gangabai v. Jai Kishandas reported in AIR 1938 Sind 36. 26. Brother, Lahoti, J. observed that the provisions of appeal to the High Court made under section 299 of the Indian Succession Act was independent provision and it was not restricted by the provisions of section 104 of the Code of Civil Procedure. 27. The nature of the proceeding before the District Judge in granting or refusing probate is that of regular civil suit and any order passed under section 299 of the Indian Succession Act was in the nature of the decree and the appeal to the High Court lies against the same according to the provisions of section 299 itself and not under section 104 of the Code of Civil Procedure. 28. Allahabad High Court, in the case of Miss. Fva Mountstephens v. Mr. Hunter Garnett Orme, reported in 1913 Indian Law Reports (Vol. 28. Allahabad High Court, in the case of Miss. Fva Mountstephens v. Mr. Hunter Garnett Orme, reported in 1913 Indian Law Reports (Vol. XXXV) page 448 held that – "The order of a District Judge granting or refusing probate of a will on an application made under the provisions of section 244 of the Indian Succession Act, 1865 is a decree within the meaning of section 2 of the Code of Civil Procedure, 1908 and appealable as such." Section 299 of the present Act is equivalent to the old Indian Succession Act of 1865. In this case reference was also made to the case of Umrao Chand, referred above and the Court held that the order passed granting or refusing probate is a decree appealable as such. 29. The Full Bench of Allahabad High Court, in the case of Mrs. Panzy Fernandas v. Mrs. M.F. Queoros and others reported in AIR 1963 Allahabad 153, held that – "The crucial test, therefore, for determining the question whether an order has the force of a decree is, not whether it is executable as a decree but whether it finally adjudicates on the rights that are in controversy in the proceedings before the Court concerned." The Court held that the final order passed refusing or granting probate under the Indian Succession Act was having the force of the decree. The Full Bench further held that an order passed in an application for probate or Letters of Administration does adjudicate on certain rights conclusively. It cannot be said that before an order could be said to be having force of a decree there must be an explicit statutory provision to that effect. There is no provision in the Indian Succession Act laying down that orders passed under section 299 shall have the force of a decree, yet orders passed thereunder cannot be considered to be merely orders, they have the force of a decree. Thus, an order granting Letters of Administration should be considered to be an order having force of a decree. 30. Reference was also made to the case of Chhunilal Laxman Prasad (Firm) v. Agrawal and Co. Thus, an order granting Letters of Administration should be considered to be an order having force of a decree. 30. Reference was also made to the case of Chhunilal Laxman Prasad (Firm) v. Agrawal and Co. and others reported in 1987 JLJ 377 = 1987 MPLJ 165 of a Division Bench case in which it was held that no Letters Patent Appeal is maintainable against an appellate Judgment of a Single Judge of the High Court granting or refusing injunction or appointing receiver. If such an order is passed in the original proceedings by the Single Judge of the High Court; only then Letters Patent Appeal will lie. 31. In the case of Mahesh Chandra Choubey v. M.M. Dubey and others reported in 1995 JLJ 141 = 1994 MPLJ 657 (F.B.) Full Bench of this Court held that no Letters Patent Appeal lies against an order of a Single Judge of the High Court, passed in appeal u/O XLIII rule I of the Code of Civil Procedure. There is also a provision of appeal against the injunction order passed by the lower Court. Following the law laid down in AIR 1983 SC 676 , a Full Bench of this Court held that in a case of injunction when an appeal is heard against the order of the lower Court by a Single Judge of the High Court, no Letters Patent Appeal lies against such an order which was passed in an appeal filed before the High Court under section 104 read with Order XLIII rule 1 of the Code of Civil Procedure. 32. On the other hand, in the latest case of Oriental Insurance Co., Ltd. v. Smt. Saraswati Bai and others reported in 1995 JLJ 11 , a Full Bench of this Court held that under the M.P. Letters Patent an appeal will lie to the Division Bench against the Judgment of a Single Judge of this Court, deciding a claim finally under the provisions of the Motor Vehicles Act 1939. The Full Bench clearly held that in Clause 10 of the Letters Patent (Madhya Pradesh), as follows :- "The word ''judgment", as used in clause 10 of Letters Patent means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective." Therefore, a Full Bench of this Court clearly held that an appeal heard by a Single Judge against an award of the Tribunal under the Motor Vehicles Act is a judgment and Letters Patent Appeal lies against such a judgment. The Full Bench of this Court had borrowed meaning of "judgment" which was interpreted by the Supreme Court in the case of South Asia Industries (P) Ltd. v. S.B. Saruo Singh and others reported in AIR 1965 SC 1442 . In that case the Supreme Court held that a judgment given by a Single Judge of the High Court under the Trade Marks Act was a judgment within the meaning of clause 15 of the Letters Patent and the Letters Patent Appeal lies to a Division Bench against such a judgment. The law laid down by the Constitution Bench of the Supreme Court in the case of South Asia Industries (P) Ltd., referred above is quoted below :- "A statute may give a right of appeal from an order of Tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under section 108 of the Government of India Act 1915, an appeal under section 39 of the Act will be heard by a Single Judge. Any judgment made by the single Judge in the said appeal will, under clause 10 of the Letters Patent, be subject to an appeal to that Court if the order made by a single Judge is a judgment and if the appropriate Legislature, has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of the single judge under clause 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court." 33. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court." 33. Again, in the case of Seema Subhash Mitra and another v. Lotika K. Mitra reported in 1995 JLJ 375 = 1995 MPLJ 4 , a Full Bench of this Court held that a Letters Patent Appeal under clause 10 will lie to a Division Bench against the judgment passed by a Single Judge on merits. Provided it is not barred by section 100-A of the Code of Civil Procedure. The Full Bench clearly held that in view of the facts of that case the Letters Patent Appeal filed against a judgment of dismissal seeking review 'of second appellate judgment, was covered under the teeth of section 100-A of the Code of Civil Procedure and, therefore, Letters Patent Appeal would not lie. 34. The facts of the present case are different, as the appeal to the single Judge was preferred against the order passed by the District Judge under section 299 of the Indian Succession Act and the judgment passed by learned single Judge of this Court, on appeal, was not in respect of a second appellate jurisdiction and, therefore, it does not come in the teeth of bar imposed under section 100-A of the Code of Civil Procedure. 35. Learned counsel for the respondents also referred to the case of Surender Kaur and another v. M/s. Kailash Transport and 7 others, decided by the then Chief Justice in L.P.A. No. 17/88. That case was against the judgment of the learned single Judge passed under Order XLIII rule 1 of the Code of Civil Procedure in respect of an application u/o XXXVIII rule 5 of the Code of Civil Procedure. This case does not apply to the facts of the present case. The case of M/s. Ram Chandra Sadri Prasad Gour v. Sri R. V. Sharma and others, was also referred to. This case was decided in L.P.A. No. 66/87 by the then Hon'ble Chief Justice Shri N.D. Ojha, C.J. and K.K. Adhikari, J. on 25th of November, 1987, which was also in respect of a case of temporary injunction. The case of M/s. Ram Chandra Sadri Prasad Gour v. Sri R. V. Sharma and others, was also referred to. This case was decided in L.P.A. No. 66/87 by the then Hon'ble Chief Justice Shri N.D. Ojha, C.J. and K.K. Adhikari, J. on 25th of November, 1987, which was also in respect of a case of temporary injunction. The Division Bench of this Court held that in such a case when the appeal was preferred under section 104 read with Order XLIII rule 1 of the Code of Civil Procedure, the Letters Patent Appeal would not lie. In the present case, the learned single Judge had heard the appeal against an order of the District Judge passed under section 299 of the Indian Succession Act and, therefore, this case will also not apply to the facts of the present case. 36. Thus, in view of the discussions made above, it is clear that any order passed under section 299 of the Indian Succession Act by the District Judge is in the nature of the judgment and decree, as the District Judge, while granting or refusing probate, finally adjudicates the matters in controversy between the parties. 37. I have the opportunity of going through the judgments of Brothers, Dr. T.N. Singh, J. and Brother R.C. Lahoti, J. who have given detailed reasons for the views taken by them. Brother, Dr. T.N. Singh, J. had placed implicit reliance on a Division Bench case of this Court in Vijayaraje Scindia (Rajmata) v. Maharaj Madhav Rao Scindia, 1988 JLJ 86 . According to the interpretation of this case made by Dr. T.N. Singh, J. even if a decree has been prepared but the nature of the order was simply an order will not be a judgment. On the other hand, Brother R.C. Lahoti, J. interpreted this case by holding that the nature of the decision has to be judged from the facts and circumstances of the case. If the matter is finally adjudicated then it is in the nature of the judgment and decree and if order is passed on the preliminary point, not finally adjudicating the controversy between the parties, that may remain as an order. Vijayaraje's case (supra) was a case of temporary injunction. 38. If the matter is finally adjudicated then it is in the nature of the judgment and decree and if order is passed on the preliminary point, not finally adjudicating the controversy between the parties, that may remain as an order. Vijayaraje's case (supra) was a case of temporary injunction. 38. The two main points were raised, as pointed out earlier that- firstly, the order passed by the District Judge was in the nature of simply an order and the appeal against the same before a single Judge of the High Court was within the provisions of sections 104, 105 and 106 of the Code of Civil Procedure and the second appeal against that judgment of the single Judge was incompetent. The second point was raised that the appellants have filed a civil suit in the Court of Civil Judge, Ashoknagar, decided by a single Judge of this Court, right of Letters Patent appeal has been abundant. 39. Brother, R.C. Lahoti, J. repelled these two contentions and held that the Letters Patent Appeal was maintainable before a Division Bench in this case. 40. I had a golden opportunity to going through the judgments of the two brother Judges and the reasons given by them. 41. The matter in controversy really raises a very important legal point which is hanging in balance since long, but the same has to be resolved with appropriate reasons. After a thorough examination of the facts and circumstances of the case and the law laid down by different Course on the subject, I respectfully differ with the findings arrived at by Brother. Dr. T.N. Singh, J. and agree with the view taken by Brother, R.C. Lahoti, J. The reasons for agreement with the view taken by Brother, R.C. Lahoti, J. are enumerated below even at the cost of repetition. 42. Firstly, it is to be noted that the right of appeal to the High Court against an order of the District Judge, passed under the Act is provided under section 299 of the Act itself. Only for the procedural purpose the reference has been made under this Act to the Code of Civil Procedure, 1908. 43. The power of appeal is a creature of statute and as such, the right of appeal is not conferred by the provisions of Code of Civil Procedure, rather it is specifically provided under section 299 of the Act. Only for the procedural purpose the reference has been made under this Act to the Code of Civil Procedure, 1908. 43. The power of appeal is a creature of statute and as such, the right of appeal is not conferred by the provisions of Code of Civil Procedure, rather it is specifically provided under section 299 of the Act. The jurisdiction and forum have both been provided under section 299 itself. That being the legal position an appeal against the order of the District Judge under section 299 of the Act is an appeal by virtue of section 299 of the Act itself and not under section 104 of the Code of Civil Procedure. 44. Brother, Lahoti, J., has rightly observed that if the contention of the respondents is accepted that section 299 of the Act does not itself create a right of appeal and one must necessarily find the source of that power only in the Code then the appeal ability of an order under section 299 of the Act shall have to be determined by a reference to section 104 of the Code alone. It was further observed that :- "If the reasoning that section 299 of the Act does not of itself create any right of power of appeal and is simply a referential provision leading to the Code of Civil Procedure was correct then the Legislature would not have used the wider phrase ''applicable to appeals" at the end of section 299 and instead would have simply said "in accordance with section 104 of the Code." Further, section 299 of the Act and in the enumeration of orders in section I 04 and Order 43 Rule 1 C.P.C., there being no item covering an order finally disposing of the probate proceedings such as one under section 289 of the Act, there would be left no provision permitting an appeal against a final order of probate Court. Section 104 of the Code is not a provision for an appeal against all or any orders, just as section 96 of the Code is a provision for an appeal against all or any decree it is a provision for appeal against enumerated and specified orders only." 45. Section 104 of the Code is not a provision for an appeal against all or any orders, just as section 96 of the Code is a provision for an appeal against all or any decree it is a provision for appeal against enumerated and specified orders only." 45. It is to be noted that for the applicability of section 104 of the Code of Civil Procedure, the appeal could lie against an order which has to be passed under the Code itself. Sections 104, 105 and 106 of the Code, if read together, indicate that orders from which appeal lies and to which Court such appeals will lie and to be heard. The orders enumerated in section 104 and order XLIII rule 1 C.P.C. are all orders which can be passed under the Code. They do not necessarily include any order passed under any other statute which was time being in force. In the case of Balkaran Rai v. Gobind Nath Tiwari, (1890) 12 All. 129 it was held that to be an order within the meaning of section 104 of the Code it has to be one passed under the Code itself. This view still holds good. 46. The second point to be noted is that the order passed by the District Judge granting or refusing the probate is in the nature of judgment and decree because the matter is finally adjudicated and the right of appeal is provided under section 299 itself. In such a situation the bar imposed by section 104 (2) of the Code of Civil Procedure does not apply in the facts of the present case. 47. The third important point to be noted is that in the Code of Civil Procedure itself section 100-A was inserted by Act No. 104 of 1976 with effect from 1st February, 1977. In such a situation the bar imposed by section 104 (2) of the Code of Civil Procedure does not apply in the facts of the present case. 47. The third important point to be noted is that in the Code of Civil Procedure itself section 100-A was inserted by Act No. 104 of 1976 with effect from 1st February, 1977. This section is quoted below :- "100-A. No further appeal in certain cases Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, 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." By inserting this section itself the bar of Letters Patent Appeal has been imposed in cases of judgment of single Judge passed in a second appeal from an appellate decree or order. This section does not create any bar in the facts of the present case which was heard in appeal by a single Judge not from an appellate decree but from an order under the provisions of Indian Succession Act, made appeal able to the High Court under section 299 of the Act. 48. After the insertion of section 100-A in the Code of Civil Procedure, the bar for Letters Patent Appeal has been specifically imposed in the case heard by a single Judge deciding an appeal from an appellate decree or order which has given finality in such a matter. But, this section does not bar Letter Patent Appeal against a judgment of a single Judge hearing an appeal preferred under the provisions of section 299 of the Indian Succession Act. 49. Thus, I find that section 100-A was inserted in the Code to give finality to certain judgments of the Single Judge hearing appeal in the High Court against appellate decree and order only. This section was inserted after a long standing controversy but the provisions of the Letters Patent Appeal remained intact in so far as the judgments of the single Judge were concerned which were not against an appellate decree or order. This section was inserted after a long standing controversy but the provisions of the Letters Patent Appeal remained intact in so far as the judgments of the single Judge were concerned which were not against an appellate decree or order. Therefore, as pointed out earlier, in the present case, Letters Patent Appeal preferred by the appellant does not come under the teeth of section 100-A of the Code of Civil Procedure. 50. Therefore, in view of the findings recorded above, I fully subscribe to the view expressed by Brother, R.C. Lahoti, J. and hold that the present Letters Patent Appeal is maintainable. The record be placed before the Division Bench of this Court to hear and decide the Letters Patent Appeal on merits.