V. K. Khanna, C. J.— The present Letters Patent Appeal has been filed against the judgment and order dated 19.7.95 passed by a learned Single Judge of this Court in MA (F) No. 86 of 1995 whereby the appeal filed by the appellants was dismissed and the trial Court was directed to dispose of the case at the earliest considering the urgency of the matter. 2. The present appeal came up for admission on 11.12.1995 and after hearing Mr. NM Lahiri, Senior Advocate assisted by Mr. N. Choudhury, learned counsel appearing for the appellants and Mr. B K Goswami, Senior Advocate, assisted by Mr. SS Dey and Mr. M. Nath, learned counsel appearing for the respondents, the Court was of the opinion that a preliminary question arose in this case as to whether a Letters Patent Appeal would lie against an order passed in appeal by a learned Single Judge of this Court under Order 43 of the Code of Civil Procedure.The Court was also of the tentative opinion that the judgment rendered by a Division Bench of this Court in Azad All vs. Housefed (1994 (1) GLJ 1) may require reconsideration and for that reason the Division Bench ordered the papers of the case to be laid before the Chief Justice for passing necessary orders. The case was thereafter referred to the Full Bench on 11.12.95 and it is in these circumstances that the appeal has come up before the Full Bench for consideration of the following question: “Whether Letters Patent Appeal lies against the judgment of Single Judge passed in Miscelleneous First Appeal arising in respect of order of the subordinate Court under Order 39 Rules 1 and 2, CPC” 3. We have heard Mr. NM Lahiri, Senior Advocate fbr the appellants and Mr. BK Goswami, Senior Advocate, for the respondents. 4. According to the argument raised by Mr. Lahiri, the first criterion as to whether the decision of Single Judge given in an appeal arising out of Order 43, Rule 1 (r) is a judgment has been decided by the Supreme Court in Babulal Khimji vs. JD Kania ( AIR 1981 SC 1786 ). There Lordships held in that case that an order refusing to appoint a Receiver or to grant an injunction is undoubtedly a judgment. There Lordships held in that case that an order refusing to appoint a Receiver or to grant an injunction is undoubtedly a judgment. Reliance has also been placed on the case of National Sewing Thread Co Ltd vs. James Chadwick & Brothers Ltd (1953 SCR 1028), where it has been held that when the Single Judge has exercised appellate jurisdiction under the statute, appeal shall lie before Division Bench under Letters Patent. Strong reliance has been placed on a Division Bench decision of the theji Nagpur High Court in the case of Ganapati Wadgo vs. Pilaji Kothuji (AIR 1956 Nagpur 211). On the basis of the aforesaid case, it has been urged that section 104, CPC has application to appeals to High Court from Courts subordinate to it. It does not deal with appeals from Single Judge of the High Court to a Bench under Letters Patent. There is no provision under the Code or any right of appeal from the decision of Single Judge to a Bench and such appeals are provided by clause 10 of the Letters Patent of Nagpur High Court which is analogous to clause 10 of Allahabad High Court and clause 15 of Calcutta, Bombay and Madras High Courts. The appeal cannot be said to be barfed by section 104 in the absence of a provision under the Letters Patent. It has been urged that this part of the judgment was not considered in Azad All's case (supra). 5. Mr. Lahiri has also placed reliance on the case of P. Ranga Reddy vs. Grolla Sambadivarao ( AIR 1978 AP 97 ") where the point for determnination before the aforesaid Court was as to whether a Single Bench judgment in a Civil & Miscellaneous Appeal against an appellate order of remand was appellable under Letters Patent. Strong reliance has been placed on the following part of the judgment: “The intention of the Parliament in section 1OOA, CPC seems to be discernible from the examination of the language employed therein to abolish all third appeals before a fourth Court.” (Paragraph 19 and 30) According to Mr. Lahiri, if the decision of the learned Single Judge arises out of an appellate order of subordinate Court, the same cannot be assailed again before the Division Bench. Lahiri, if the decision of the learned Single Judge arises out of an appellate order of subordinate Court, the same cannot be assailed again before the Division Bench. But when the decision of the Single Judge relates to an order of subordinate Court passed in original jurisdiction, there shall not be any bar for appeal before Division Bench. 6. It has also been urged that the last and final test in this respect is whether such a right of appeal conferred under clause 15 of the Letters Patent can be taken away and, if so, how? It has been argued that this matter has been dealt with by the Apex Court in the case of Umaji vs. Radhikabai ( AIR 1986 SC 1272 ) wherein their Lordships have held : “91. The position which emergs from the above discussion is that under clause 15 of the Letters Patent of Charterted High Courts from the judgment (within the meaning of the 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 Civil Procedure Code, 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 Govt 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.” It has been urged that the Division Bench in Azad All's case (supra) did not consider the aforesaid decision of the Hon'ble Supreme Court and the quotation from paragraph 41 of Babulal Khimjis case (supra) has no relevance for adjudicating on this point. The sum and substance of the argument raised by Mr. Lahiri is that the right of appeal conferred under clause 15 of the Letters Patent cannot be taken away without any competent legislation for the aforesaid purpose. The sum and substance of the argument raised by Mr. Lahiri is that the right of appeal conferred under clause 15 of the Letters Patent cannot be taken away without any competent legislation for the aforesaid purpose. The provisions under section 104 (2) of the Code of Civil Procedure cannot override the provisions of Letters Patent inasmuch as the right of appeal conferred under section 104 of the Code of Civil Procedure has only been curtailed by the said section 104 (2) of the Code of Civil Procedure. 7. Mr. BK Goswami, learned counsel for the respondents, has strongly relied on paragraph 41 of the judgment rendered by the Apex Court in the case of Shah Babulal Khimji (supra) and on that basis it has been urged that in paragraph 41 it has been clearly held that: “41. A further second appeal lying to a Division Bench from an appellate order of the trial Judge passed under Order 43, Rule 1 is wholly foregin to the scope and spirit of the Letters Patent. Unfortunately, however, the Allahabad High Court in Ram Samp's case (AIR 1937 All 165) (supra), refused to follow a Division Bench decision in Piari Lal vs. Madan Lal, ILR 39 All 191: (AIR 1917 All 325) and also tried to explain away the Full Bench decision in Ram Samp's case (Piari ° Lals case?) (supra) where it was clearly pointed out that in such cases no further appeal would lie to Division Bench under the Letters Patent. The distinction drawn by the Allahabad High Court regarding the application of section 104 is a distinction without any difference...” The Supreme Court considered a decision of the Allahabad High Court in Ram Sarup's case (AIR 1937 Allahabad 165) and also two other decisions of the same High Court and in para 43 it was held : “43. Thus in these two cases it was clearly held that where a trial Judge passed an order in an appeal against an order passed by the District Judge under Order 43, Rule 1, a further appeal under Letters Patent was not maintainable. This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched as referred to above. This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched as referred to above. Thus the later decision of the Allahabad High Court in Ram Sarup's (AIR 1937 All 165) (supra) was clearly wrong in holding that an appeal under Letters Patent would lie even against an appellate order of the trial Judge passed under Order 43, Rule 1 even though it was prohibited by section 104 (2).” 8. However, in the latest decision of the Apex Court in the case of Resham Singh Pyara Singh vs. Abdul Sattar, (1996)1 SCC 49 , the controversy which has been decided by the Apex Court in the aforesaid case is precisely the controversy which has been raised before us. The petitioner before the Apex Court claimed to have entered into an agreement on 21.6.1973 to purchase certain lands from AH Wadia Charity Trust. In 1975, when one Mohd Amin and others attempted to construct a boundary wall in the said land, he claimed to have filed Suit No. 298 of 1975 in the City Civil Court, Bombay and had an injunction against them restraining them from interferring with his possesion and construction of the boundary wall. When the petitioner had attempted to repair the existing road on the land and open drainage, the respondent filed Suit No.493 of 1990 in the City Civil Court, Bombay for injunction. The respondent claimed to be in possession of the land admeasuring 1947 sq metres. On its basis, the petitioner claimed that they were attempting to trespass into his land. Consequently, the appellant filed Suit No.3670 of 1994 and also sought ad interim injunction to restrain the respondent from committing trespassing into his land. Initially, interim injunction was granted on 28.6.1994. When the appeal was filed against that order, the learned Single Judge of the High Court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall by order dated 13.9.1995. Against the order, the petitioner filed Letters Patent Appeal contending that the order of the learned Single Judge amounts to granting temporary mandatory injunction to break the compound wall and removing article etc. By the impugned order dated 13.(sic).1995, the Division Bench rejected the same on the ground that LPA would not lie against the order of the learned Single Judge. Thus these SLPs. 9. By the impugned order dated 13.(sic).1995, the Division Bench rejected the same on the ground that LPA would not lie against the order of the learned Single Judge. Thus these SLPs. 9. In the SLPs before the Apex Court, it was contended that as per the law laid down by the Apex Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania (supra), Letters Patent Appeal would lie to the Division Bench against the interlocutory order of the Single Judge and, therefore, the view taken by the Bombay High Court was not correct. The Apex Court held that it is Order 43, Rule 1, Civil Procedure Code, which provides an appeal from the orders passed under Order 39, Rule I,1 as stated in sub-rule (4), and that section 104, Civil Procedure Code, provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body of the Code or by any law for the time being in force and from no other orders. Sub-section (2) envisages that “No appeal shall lie from any order passed in appeal under this section.” 10. The Apex Court in para 6 of the aforesaid judgment held as follows : “It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned Single Judge under Order 43, Rule 1 (r) as provided in sub-section (1) of section 104 by operation of sub-section (2) of section 104, no further appeal shall lie from any order passed in appeal under this section. In Khimji case the suit was filed on the original side of the High Court and the learned Single Judge on the original side passed in interlocutory order. Against the orders of the learned Singe Judge, though it was an interlocutory order, since the appeal would lie to the Division Bench under the Letters Patent,this Court held that against the interlocutory orders passed by the Single Judge. Letters Patent Appeal would be maintainable. That ratio, therefore, is cleary inapplicable to the facts in this case.” 11. The facts of the present case are exactly similar to the case before the Apex Court in the case of Resham Singh Pyara Singh (supra). Letters Patent Appeal would be maintainable. That ratio, therefore, is cleary inapplicable to the facts in this case.” 11. The facts of the present case are exactly similar to the case before the Apex Court in the case of Resham Singh Pyara Singh (supra). The appeal before the learned Singe Judge was under the provisions of Order 43, Rule 1 (r) and in view of the provisions of sub-section (2) of section 104 no further appeal would lie from any order passed in an appeal under this section. In view of the law laid down by the Apex Court in the case of Resham Singh Pyara Singh (supra), we are of the opinion that the Letters Patent Appeal will not lie before the Division Bench of High Court against the order of the learned Single Judge by virtue of section 104 (2) of the Code of Civil Procedure. 12. For the reasons stated above, the present Letters Patent Appeal is dismissed as not maintainabe. However, looking to the entire facts and circumstances of the case, we leave the parties to bear their own costs.