Judgment S.B. Sinha, J. Correctness of a Division Bench decision of this court in M/s. Merchants of Traders (P) Ltd. vs. M/s. Sarmon Pvt. Ltd., reported in 1997(1) CHN 287 having been doubted by another Division Bench consisting of Ruma Pal, J. (as she then was) and Basudeva Panigrahi, J., reference has been made to this Bench to consider as to whether an appeal is maintainable in terms of Clause 15 of the Letters Patent of this court against grant of conditional leave to defendant to defend the suit in terms of Order 37 Rule 5 of the Code of Civil Procedure. 2. The basic fact of the matter required to be taken note of for disposal of this matter is as follows :- 3. The appellants had purchased goods from respondents on diverse dates and sought to pay therefor by account payee cheques drawn in plaintiffs favour which were dishonored by the Banks on the grounds; "Refer to drawer", "Insufficient Fund", "Payment stopped by the drawer". 4. The plaintiff, therefore, filed a suit for recovery of a sum of Rs.11,57,872.80 p which became payable to him towards the price of goods sold keeping in view the dishonoured cheques together with interest. The plaint was filed in terms of Order 37 of the Code of Civil Procedure. The plaintiff took out an application for attachment before judgment. He also filed a separate application for grant of injunction and by an order dated 18.7.96 an order of injunction was issued restraining the appellants from dealing with or disposing of their properties. The appellant upon entering appearance filed an application for leave of the Court to defend the suit. The application for attachment before judgment was disposed of an 6th August, 1996 whereupon a direction was issued upon the appellant to furnish security of Rs.4,00,000/-. The appellant subsequently filed an application for recalling the said order which was dismissed. As against the said order an appeal was preferred and a Division Bench of this Court set aside the order of the trial Judge and remitted the matter back to it with a direction to hear out the matter afresh and dispose of the same with a reasoned order. 5. As against the said order an appeal was preferred and a Division Bench of this Court set aside the order of the trial Judge and remitted the matter back to it with a direction to hear out the matter afresh and dispose of the same with a reasoned order. 5. By reason of the judgment under appeal, the learned trial Judge directed the appellant to furnish security of Rs.5,00,000/- by way of bank guarantee or immovable properties within four weeks from the date of the said order and, thus, granted conditional leave to the appellant herein in terms of Order 37 Rule 5 of the Code of Civil Procedure. 6. As against the said order the instant appeal has been filed. A question has been raised as regard maintainability of the appeal on a similar question. 7. A Division Bench of this court consisting of S.K. Mookherjee and R.K. Mitra, JJ., M/s. Merchants & Traders (supra) in a short judgment, relying on or on the basis of the Division Bench decision in Hiralal Debgupta vs. Salil Kumar Paul, reported in AIR 1973 Cal 320 as also another Division Bench decision in Bonwari Lal Roy vs. Sohan Lal Daga, reported in I.L.R. 1955 (1) Cal 299, held that the appeal was not maintainable. 8. However, in the instant case the Division Bench, as noticed hereinbefore, differed with the said view, inter alia, relying on the decisions in Chattu Lal Misser & Ors. vs. M/s. Marwari Commercial Bank Ltd. & Ors., reported in AIR 1926 Cal 668; Mitra, Mukherjee & Co. vs. Ajit Kumar Sarkar, reported in AIR 1963 Cal 9 and the decisions of the Bombay High Court in Ramanlal Shantilal & Co. vs. Chunilal Damodardas & Ors., reported in AIR 1932 Bom. 163 in and M/s. D. Shanlal & etc. vs. Bank of Maharashtra, reported in AIR 1989 Bom. 150 as also the decision of the Supreme Court in Milkhiram (India) Put. Ltd. vs. Chamanlal, reported in AIR 1965 SC 1698 and Shah Babulal Khimji vs. Jayaben, D. Kania & Anr., reported in AIR l 1981 SC 1786. 9. The learned Judges observed that after rendition of the Division Bench decisions of this court in Bonwarilal Roy vs. Sohanlal Daga, reported in I.L.R. 1955 (1) Cal. Ltd. vs. Chamanlal, reported in AIR 1965 SC 1698 and Shah Babulal Khimji vs. Jayaben, D. Kania & Anr., reported in AIR l 1981 SC 1786. 9. The learned Judges observed that after rendition of the Division Bench decisions of this court in Bonwarilal Roy vs. Sohanlal Daga, reported in I.L.R. 1955 (1) Cal. 299 and Hiralal Deb Gupta vs. Salil Kumar Paul, reported in AIR 1973 Cal 320 , the Code of Civil Procedure has undergone an amendment in terms whereof, upon failure to fulfil the conditions imposed while granting leave to defend in terms of Order 37 Rule 5 of the. Code of Civil Procedure a decree will automatically follow and, thus, the said decision do not constitute binding procedure. 10. The learned Counsel appearing on behalf of the parties had repeated before us the same arguments which had been advanced before the Division Bench and, thus, it is not necessary to refer thereto once-over-again. 11. However, the only question, which in our view is relevant is as to whether an appeal under clause 15 of the Letters Patent of this court will be maintainable despite the bar thereto created under section 104 of the Code of Civil Procedure. This aspect of the matter has not been considered in the decisions of the Division Bench while referring the matter to the Larger Bench or in M/s. Merchant Traders (supra). 12. An appeal is the right of entering a superior court and invoking its aid and interposition to redress an error of the Court below and an appeal can be filed as a matter of right.(See : Rani Manprasad vs. Gopichand, reported in AIR 1973 SC 566 at 568.). 13. Clause 15 of the Letters Patent of this court read thus :- "Clause 15: Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. 13. Clause 15 of the Letters Patent of this court read thus :- "Clause 15: Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. And we do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal 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 appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 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 108 of the Government of India Act made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order 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 judgments of Judges of the said High Court or of such Division Court shall be to us, or heirs or successors in our or their Privy Council as hereinafter provided." 14. Section 104 of the Code of Civil Procedure reads thus :- "Section 104. Section 104 of the Code of Civil Procedure reads thus :- "Section 104. Orders from which appeal lies.-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- * * * * * (ft) an order under section 35A; (ffa) an 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: Provided that no appeal shall lie against any order specified in clause (ff) 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." 15. Section 104 of the Code refers to a cluster of rights of appeal. 16. When a suit is filed in terms of Order 37 of the Code of Civil Procedure, an application seeking leave to defend the same is mandatorily required to be filed in the event, the defendant intends to defend the action. Such leave can be refused or granted either conditionally or unconditionally in terms of Order 37 Rule 5 of the Code of Civil Procedure. An appeal does not lie against an order passed under Order 37 Rule 5 of the Code of Civil Procedure although thereby a right of the party has been determined. 17. An order passed under Order 37 Rule 5 of the Code of Civil Procedure keeping in view the amendment effected by Code of Civil Procedure (Amendment) Act, 1976 would be a judgment within the meaning of Clause 15 of the Letters Patent is neither in doubt nor in dispute. 18. In M/s. D. Shanalal & etc. vs. Bank of Maharashtra, reported in AIR 1989 Bom. 18. In M/s. D. Shanalal & etc. vs. Bank of Maharashtra, reported in AIR 1989 Bom. 150 , a Division Bench of the Bombay High Court upon taking into consideration the High Court Amendments as regards to Bombay (Dadra and Nagar Haveli) to sub-Rule (3) of Order 37 held that such an order could be a judgment. While doing so, it disagreed with earlier view in Banwarilal reported in I.L.R. 1955 (1) Cal 299. 19. Shah Babulal Khimji vs. Jayaben D. Kania & Anr., reported in AIR 1981 SC 1786 is magnum opus on the subject and still holds the field. 20. Tracing the history of section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, Fajal Ali, J. in Shah Babulal Khimji vs. Jayaben D. Kania & Anr., reported in AIR 1981 SC 1786 , whereupon the learned Counsel for the appellant relied upon, observed that in terms of section 5 of the Code of Civil Procedure except revenue courts all other Civil Courts would normally be governed by the provisions of Code of Civil Procedure in the matter of procedure. Repealing an argument that in the context of section 104 of the Code of Civil Procedure, Letters Patent of a High Court would be a special law it was held:- "Thus, the test contained in section 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by section 4 , the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent," 21. Interpreting the provisions of sections 104 and 105 of the Code of Civil Procedure as also Order 49 of the Code of Civil Procedure whereby and whereunder certain provisions thereof have been excluded from their application as regard trial of a suit to any Chartered High Court, the Apex Court observed that provision of Order 43 Rule 1 had not been excluded. It was held:- "Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above leads to the irresistible conclusion that section 104 read with Order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. It was held:- "Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above leads to the irresistible conclusion that section 104 read with Order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. Unfortunately, this fact does not appear to have been noticed by any of the decisions rendered by various High Courts." 22. The question which arose before the Apex Court for its consideration was as to whether orders dismissing applications for injunction or appointment of receiver would be appealable in terms of Order 43 Rule 1 of the Code of Civil Procedure although such orders may not be judgments within the meaning of Clause 15 of the Letters Patent. 23. Having noticed the provision of section 117 of the Code of Civil Procedure it was held: "We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case section 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a Larger Bench. Indeed, if this is the position then the contention of the respondent that section 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if Order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a Trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of Order 43 Rule 1 by a Trial Judge, such an appeal can lie to a Larger Bench of the High Court and not to any Court subordinate to the High Court. It is obvious that when the Code contemplates appeals against orders passed under various clauses of Order 43 Rule 1 by a Trial Judge, such an appeal can lie to a Larger Bench of the High Court and not to any Court subordinate to the High Court. Hence, the argument that Order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts." (emphasis supplied) 24. Apart from section 104 of the Code of Civil Procedure, provisions of other statute like section 39 of the Arbitration Act, 1940 provide for internal appeal to a Larger Bench of the High Court from a decision of a Single Judge. 25. The question as to whether if an appeal lies under Order 43 Rule 1 and decided by a learned Single Judge wherefrom a further appeal will lie before a Division Bench in terms of Clause 15 of the Letters Patent was answered in affirmative. 26. The Apex Court referred with approval a decision of this court in Kumar Gangadhar Bagla vs. Kanti Chunder Mukherjee & Anr., reported in 40 C.W.N. 1264 wherein it was held that in view of section 117 of the Code of Civil Procedure as also Order 49 Rule 3 both section 104 and Order 43 Rule 1 would apply to the High Court. The Apex Court negatived the contrary contentions raised at the Bar. It was held: "Another ground taken by the Court is that if Order 43 Rule 1 is made applicable to the High Court then a strange anomaly will arise in that where an appeal lies to the Division Bench, how could a further appeal lie to some other bench of the Court. This argument also is based on a misconception of Order 43 Rule 1. It is manifest that if Order 43 Rule 1 were to apply to orders passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court. We are unable to see any anomaly or inconsistency in this position. We are unable to see any anomaly or inconsistency in this position. Thirdly, the Court seems to have relied on a decision of the Privy Council in Mt. Sabitri Thakurain vs. Savi, (AIR 1921 PC 80) and has interpreted the ratio of this case to mean that section 104 would not apply to High Courts which is exactly what the Privy Council does not say. With due respect, therefore, the learned Judges have not correctly appreciated the decision of the Privy Council which has nowhere indicated that Order 43 Rule 1 would not apply to internal appeals in the High Court, on the other hand their Lordships of the Privy Council had held to the contrary as discussed above. For these reasons, therefore, we are of the opinion that this case has also not been correctly decided and we disapprove the reason given and the decision taken in this case." 27. It is true that the Apex Court by way of illustration held that an interlocutory order refusing leave to defend the suit again under Order 37 of the Code of Civil Procedure may be treated as judgment. A.N. Sen, J., concurring with the views of Fajal Ali, J. categorically held:- "An appeal admittedly lies to a Division Bench of the High Court from any order passed by a learned single Judge on the original side under Clause 15 of the Letters Patent, if the order is a 'judgment' within the meaning of the said Clause. An appeal also admittedly lies from a decree passed by a single Judge on the Original Side of the High Court to a Division Bench of the High Court. A Division Bench, properly constituted, is perfectly competent to hear an appeal from any such order which may constitute a judgment within the meaning of Clause 15 and from any decree passed by a single Judge on the Original Side of the High Court. In the same way in case of any other order in respect of which right to prefer any appeal has been conferred by a statute a Division Bench of the High Court will be competent to hear such an appeal. (emphasis supplied) 28. In the same way in case of any other order in respect of which right to prefer any appeal has been conferred by a statute a Division Bench of the High Court will be competent to hear such an appeal. (emphasis supplied) 28. The learned Judge proceeded to observe :- "The argument that section 104 and Order 43 of the Code affect the special jurisdiction or power conferred on the High Court under Clause 15 of the Letters Patent is, to my mind, untenable. Clause 15 of the Letters Patent was enacted to provide for an appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction and the said clause undoubtedly confers power for the hearing of an appeal from a judgment of any judge on the Original Side of the High Court. Though Clause 15 makes special provisions in relation to appeal from a judgment of a learned Single Judge on the Original Side, yet it cannot be said that the said clause intended to lay down that in no other case an appeal will lie from an order passed by any learned Judge on the original, even if any specific provision is made in any other statute making any other order appealable." (emphasis supplied) 29. It was further held:- "Section 104 of the Code provides for appeals from orders and clearly stipulates that an appeal shall lie from the orders mentioned therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other order. Order 43 which is attracted by section 104 of the Code clearly provides that an appeal shall lie from the orders mentioned in Rule 1 of Order 43 under the provisions of section 104 and the orders referred to therein particularly in (g), (r) and (s) clearly indicate that the order in question is an appealable order. As I have earlier observed that an appeal is a creature of a statute and the right to appeal is only enjoyed, if law confers any right. The Code of Civil Procedure dearly makes the order in question an appealable one. The legislature has thought it fit to confer a right on the litigant to prefer an appeal in respect of the orders mentioned in section 104 of the Code read with Order 43 thereof. The Code of Civil Procedure dearly makes the order in question an appealable one. The legislature has thought it fit to confer a right on the litigant to prefer an appeal in respect of the orders mentioned in section 104 of the Code read with Order 43 thereof. A court will be slow to deprive a litigant of the statutory right merely on the ground that the order in question has been passed by a learned Judge on the Original Side of the High Court. It may further be pointed out that section 104 which makes the order under appeal and also various other orders referred to therein appealable under the Code, recognises that apart from the order made appealable under the Code there may be other orders appealable by any law for the time being in force and further provides that no appeal will lie from any orders other than the orders expressly provided in the body of the Code or by any other law in force. The right of appeal against a judgment of a learned Single Judge on the Original Side under Clause 15 of the Letters Patent is a right conferred by any other law in force. It may be pertinent to point out in this connection that by incorporating section 100A in the Code (by the Amending Act 10 of 1976, section 38) the legislature has thought it fit to interfere with the right of appeal in certain cases even if such right had been conferred by Letters Patent or any other law. (emphasis supplied) 30. In New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation & Ors., reported in 1997(3) SCC 462 , the Apex Court held:- "Since section 104(2) expressly prohibits an appeal, against an order passed by the appellate Court under Order 4 Rule 1 read with section 104(1) no…. appeal would lie. As a consequence no Letters Patent appeal would lie. The view taken in Madhusudan Vegetable Products Co. Ltd. vs. Rupa Chemicals and Firm, Chhunilal Laxman Prasad vs. Agarwal and Co. by the two High Courts is correct in law. The view of the Division Bench in Sashikala Padhi vs. Hiren Ghosh is correct in law. Sukuri Dibya case and the Birendra case are not good law. The view taken in Madhusudan Vegetable Products Co. Ltd. vs. Rupa Chemicals and Firm, Chhunilal Laxman Prasad vs. Agarwal and Co. by the two High Courts is correct in law. The view of the Division Bench in Sashikala Padhi vs. Hiren Ghosh is correct in law. Sukuri Dibya case and the Birendra case are not good law. It is seen that the very object of introducing these amendments was to cut down the delay in disposal of suits and to curtail the spate of remedial steps provided under the Code. As held earlier, the right of appeal is a creature of the statute having expressly prohibited the filing of second appeal under sub-section (2) of section 104, the right of appeal provided under clause 10 of the Letters Patent would not be available. As already noted, the main part of clause 10 clearly indicates that an appeal would lie from the judgment not being a judgment passed in exercise of appellate jurisdiction. Thereby the judgment from an appellate jurisdiction stands excluded under the first part of clause 10 of the Letters Patent itself. Therefore, the Division Bench of the High Court was right in holding that the Letters Patent appeal would not lie against an order of the learned single Judge." 31. The correctness of the said decision came up for consideration before the Apex Court in Hemlata Panda vs. Sukuri Dibya, reported in 2000 (2) SCC 218 , wherein relying on or on the basis of Shah Babulal Khimji (supra) it was held that a distinction arises as regard exercise of Original Jurisdiction of the court and the exercise of the Appellate Jurisdiction. In the former case an appeal under Clause 15 of the Letters Patent would be maintainable whereas in the latter it would not be. 32. In view of the aforementioned authoritative pronouncement of the Apex Court we have no other option but to hold that an appeal will be maintainable against the impugned order under Clause 15 of the Letters Patent of this Court. 33. Although nothing further was required to be said, as certain points had been argued and certain questions had arisen in our mind, we are of the opinion that it is necessary to place the same on records keeping in view the fact that certain aspects of the matter had not been considered in any of the aforementioned decisions. 34. 33. Although nothing further was required to be said, as certain points had been argued and certain questions had arisen in our mind, we are of the opinion that it is necessary to place the same on records keeping in view the fact that certain aspects of the matter had not been considered in any of the aforementioned decisions. 34. Section 104(1) of the Code of Civil Procedure, as noticed hereinbefore, clearly states that an appeal shall lie from the orders enumerated therein save, inter alia, otherwise expressly provided by any law for the time being in force. 35. The questions which arise are:- (1) Whether Letters Patent would be a law for the time being in force within the meaning of the said provision and if so whether the same would prevail over section 104 of the Code of Civil Procedure? and (2) Whether keeping in view the phraseology, 'no other orders' an appeal would be maintainable from an order which is not provided for under Order 43 Rule 1 of the Code of Civil Procedure? 36. If we trace the history of Letters Patent we find that the British Parliament passed Indian High Courts Act in August, 1861. The Act of 1861 empowered the crown to establish, by Letters Patent, High Court of Judicator at Calcutta, Madras and Bombay. The jurisdiction and powers of the High Court were to be fixed by Letters Patent. Letters Patent, therefore, is a subordinate legislation. 37. There cannot be any doubt that it is a law within the meaning of Articles 225 and 372 of the Constitution of India. See Board of Governors St. Thomas School vs. A.K. George, reported in AIR 1984 Cal 208 , paragraph 8. 38. In Sukla Choudhury vs. Manjolyn Tweedie, reported in AIR 1977 Cal 239 , a learned single Judge of this Court held that the plea that after independence and promulgation of the Constitution the Letters Patent of the High Court ceased to exist and that therefore jurisdiction of the High Court on its Original Side being one drawn from Letters Patent also ceased to exist with the result that suits could not be entertained, was rejected. 39. 39. In Chunilal Basu vs. Calcutta C.J., reported in AIR 1972 Cal 470 , the court held that the provision of section 106 of the Government of India Act, 1919, section 223 of the Government of India Act, 1935, Clause 2(1) of India (Adaptation of Existing Laws) Order, 1949 and section 18(3) of Independence Act, 1947 have saved Letters Patent, 1865 which was the existing law and, thus, its provisions continued even after commencement of the Constitution. The learned Judge, however, lamented that it is unfortunate that even after so many years of independence of India we are being governed by the law which indicates the foreign domination. Reference in this connection may also be made to a Full Bench decision of Andhra Pradesh High Court in Re. Putta Ranganayakulu and Ors., reported in AIR 1956 A.P. 161 . 40. It has further been held in the aforementioned decision that no doubt such powers or the rules made thereunder would be subject to the laws made by a competent Legislature or authority. To the same extent the judgments of the Mysore High Court in Shivarudrappa vs. Kapurchand, reported in AIR 1965 Mysore 76 at 84 and Board of Governors St. Thomas School vs. A.K. George, reported in AIR 1984 Cal 208 , paragraph 8. 41. Different High Courts at different point of time took divergent views. One view was that section 104 of the Code of Civil Procedure is not applicable and unless an order affects the right of the parties and, thus, unless becomes a judgment within the meaning of section 2 (9) of the Code of Civil Procedure, no appeal would be maintainable in terms of Clause 15 of the Letters Patent. 42. In Shah Babulal Khimji's case reported in AIR 1981 SC 1786 , a question arose as to whether an appeal is maintainable refusing to appoint a Receiver in terms of Order 40 Rule 1 of the Code of Civil Procedure by a single Judge in Original Side jurisdiction as the same was not a judgment within the meaning of clause 15 of the Letters Patent. The Apex Court considered the matter from various angles, e.g. (a) Whether in view of clause 15 of the Letters Patent an appeal under section 104 of the Code of Civil Procedure would lie? The Apex Court considered the matter from various angles, e.g. (a) Whether in view of clause 15 of the Letters Patent an appeal under section 104 of the Code of Civil Procedure would lie? (b) Whether clause 15 of the Letters Patent superseeds Order 43 Rule 1 of the Code of Civil Procedure? (c) Even section 104 of the Code of Civil Procedure has no application, whether an order refusing to grant injunction or appoint a Receiver would be a judgment within the meaning of clause 15 of the Letters Patent? 43. Each, question has been answered from different angle. The Apex Court held:- "(1) Section 104 of the Code of Civil Procedure read with order 43 Rule 1 expressly authorises a forum of appeal against orders falling under various clauses of Order 43 Rule 1 to a Larger Bench of a High Court without at all disturbing interference with or overriding the Letters Patent jurisdiction. (2) Having regard to the provisions of section 117 and Order 49 Rule 3 of the Code of Civil Procedure which excludes various other provisions from the jurisdiction of the High Court, it does not exclude Order 43 Rule 1 of the Code of Civil Procedure. (3) There is no inconsistency between section 104 read with Order 43 Rule 1 and the appeals under Letters Patent, as Letters Patent in any way does not exclude or override the application under section 104 read with Order 43 Rule 1 which shows that those provisions would not apply in internal appeals within the High Court." 44. As regard the alternative arguments advanced before the Apex Court it was held that having regard to the nature of the orders contemplated under the provisions of Order 43 Rule 1, such orders decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and those orders do possess the character or finality so as to be judgment within the meaning of clause 15 of the Letters Patent and hence appealable to a Larger Bench. However, what did not call for consideration before the Apex Court in Shah Babulal Khimji (supra) was :- 1. However, what did not call for consideration before the Apex Court in Shah Babulal Khimji (supra) was :- 1. As section 104 of the Code of Civil Procedure read with Order 43 Rule 1 would apply to suits filed in the Original Side of this Court, the same by necessary implication would exclude the right of appeal under clause 15 of the Letters Patent inasmuch as section 104(1) of the Code of Civil Procedure clearly states that except orders mentioned therein or any other provisions in the Code of Civil Procedure or any other law for the time being in force and from no other orders. (Emphasis supplied) 2. If section 104 of the Code of Civil Procedure applies in its entirety, or in other words if an appeal under clause 15 is not an appeal under a special statute, whether any order which is not covered by any of the clauses to substantiate in Order 43 Rule 1 would become an appealable order by force of clause 15 of the Letters Patent. 3. The Apex Court had also no occasion to consider that as Code of Civil Procedure will prevail over, clause 15 of the Letters Patent inasmuch as by reason of the provision of the Code of Civil Procedure an appeal under clause 15 may be barred and would not be saved the words "by any law for the time being in force". 4. The Apex Court also had no occasion to take into consideration as to whether keeping in view the scheme of the Code of Civil Procedure and particularly in view of the fact that no appeal shall lie from any order which has not been mentioned in section 104 or any other provision of the Code of Civil Procedure, the orders which are not provided therein would not be appealable by necessary implication. 5. Code of Civil Procedure contains both substantive provisions and the procedural proceedings. The substantive provision of appeal having been made applicable to the Original Side of the Court, the same being a special law enacted by the Parliament would prevail over the provision of clause 15 of the Letters Patent. 45. 5. Code of Civil Procedure contains both substantive provisions and the procedural proceedings. The substantive provision of appeal having been made applicable to the Original Side of the Court, the same being a special law enacted by the Parliament would prevail over the provision of clause 15 of the Letters Patent. 45. A question has been raised as to whether both clause 15 of the Letters Patent and Order 43 Rule 1 of the Code of Civil Procedure would provide two different forums of appeal in the case an order has been passed in the Original Side of this Court. The answer to the aforementioned question may not be in the affirmative as has been submitted by the learned Counsel for the respondent. Both section 104 of the Code of Civil Procedure and clause 15 of the Letters Patent provides for right of appeal. Such right of appeal in the self-same forum, it is possible to argue, may not be found out from two different sources. It is also possible to argue that in a case of conflict, the Code of Civil Procedure being a special Legislation in relation to Letters Patent (keeping in view Order 49 Rule 3 of the Code of Civil Procedure) would prevail over clause 15 of the Letters Patent. It is also possible to argue that a right of appeal would either be governed under section 104 of the Code of Civil Procedure or clause 15 of the Letters Patent. The aforementioned provisions may be supplementary and complementary to each other but clause 15 of the Letters Patent cannot be treated to have conferred an additional right to a litigant in a case where no appeal under section 104(1) read with Order 43 Rule 1 of the Code of Civil Procedure has been provided for. 46. It is also possible to argue that section 104 of the Code of Civil Procedure must be read as a whole. If a right of appeal is prohibited under subsection (2) of section 104, such right of appeal must be held to be prohibited under sub-section (1) thereof as well as unless source for such a right of appeal can be traced to any other provision of the Code of Civil Procedure, as for example, sections 96, 100 or Order 43 Rule 1 of the Code of Civil Procedure and/or any other special statute. 47. 47. It is further possible to argue that section 104 of the Code of Civil Procedure provides for an appeal from the orders passed in a suit irrespective of the forum. 48. It will also be contentious that whenever an order is passed by a Civil Court under the Code of Civil Procedure, a right of appeal in view/of Shah Babulal Khimji (supra) would be available only under the Code. For the said purpose Clause 15 of the Letters Patent cannot be said to be a special statute. The word "by any law for the time being in force" used in section 104 of the Code of Civil Procedure, therefore, it must be held to mean such statutes in terms whereof an appeal would be maintainable before a Civil Court, as for example, Arbitration Act, 1940, Arbitration and Conciliation Act, 1996, section 10F of the Companies Act, Motor Vehicles Act, 1988, Land Acquisition Act, 1898 etc. 49. In Uttam Singh & Ors. vs. National Insurance Co. Ltd. & Ors., reported in AIR 1988 M.P. 199 , it has been held :- "Thus Letters Patent do not create any right of appeal but provide only forum for exercise of the right. The corpus of the right of appeal envisaged under section 110-D cannot be enlarged to enable another appeal being filed at the same forum, namely, in the High Court. The remedy of the aggrieved person in such a case is not in High Court; he has to go to the Hon'ble Supreme Court, to assail the judgment of the 'High Court' whether passed by a single Judge or Division Bench." 50. It is pertinent to note that prior to enactment of section 100A of the Code of Civil Procedure (Amendment) Act, 1976, Letters Patent appeals used to be filed from the judgments passed in appeals by the Single Bench before a Larger Bench. 51. The proposition that an appeal will be maintainable although the same has clearly been prohibited both under section 104 and Order 43 Rule 2 of the Code of Civil Procedure was, thus, expressly negatived. 52. Keeping in view the said proposition of law, let us consider the question involved to this Bench. 53. In M/s. Merchants of Traders (P) Ltd. Vs. 52. Keeping in view the said proposition of law, let us consider the question involved to this Bench. 53. In M/s. Merchants of Traders (P) Ltd. Vs. M/s. Sarmon Pvt. Ltd., reported in 1997 (1) CHN 287 , learned Division Bench although did not consider this aspect of the matter but held that an order passed in terms of Order 37 Rule 5 of the Code of Civil Procedure will not be appealable. 54. It has further been contended that by reason of enactment of section 104 of the Code of Civil Procedure the right of appeal under clause 15 of the Letters Patent independently has been taken away excepting creating a forum therefor, viz. from a single Judge to a Division Bench comprising of two or more Judges. 55. As indicated hereinbefore, in view of the binding precedent of the Supreme Court it is not possible for us to pronounce any decision on the aforementioned question authoritatively and, thus, we leave the matter at that. However, in this connection we may notice certain decisions rendered in this jurisdiction as well as by the Apex Court. 56. In Municipal Corporation of Brihanmumbai & Anr. vs. State Bank of India, reported in 1999(1) SCC 123 , the Apex Court keeping in view the provision of section 100A of the Code of Civil Procedure brought in by the Amendment Act, 1976, observed :- "This section has been introduced to minimise the delay in the finality of a decision. Prior to the enactment of the above provision, under the Letters Patent, an appeal against the decision of a single, Judge in a second appeal was, in certain case, held competent, though under section 100 of the Code of Civil Procedure, there was some inhibition against interference with the findings of fact. The right of taking recourse to such an appeal how now been taken away by section 100-A of the Code of Civil Procedure (supra). Since, an appeal under section 217(1) of the Act is a first appeal in a second forum/Court and an appeal under section 218-D of the Act is the second appeal in the third forum/Court, no further appeal would be competent before the fourth forum/court in view of section 100-A of the Code of Civil Procedure (supra)." 57. Since, an appeal under section 217(1) of the Act is a first appeal in a second forum/Court and an appeal under section 218-D of the Act is the second appeal in the third forum/Court, no further appeal would be competent before the fourth forum/court in view of section 100-A of the Code of Civil Procedure (supra)." 57. In Union of India vs. K. Satyanarayan & Co., reported in 1995 (1) C.L.J. 458, I speaking for a Full Bench, upon consideration of various decisions held:- "There cannot be any doubt whatsoever that the Arbitration Act is a special statute and is a self-contained Code. The provisions of the Code of Civil Procedure apply to the cases filed under the Arbitration Act as the Arbitration Act expressly provides therefor as also in terms of section 141 of the Code of Civil Procedure. An appeal is a creature of a statute. The Parliament in its wisdom may not provide for an appellate forum against some orders and may provide appeals on limited ground against the orders passed by a Court or Tribunal. Such appeals may also be conditional ones. Even an appeal may be maintainable at the instance of one party; but only a limited appeal may be maintainable at the hands of the other e.g. an appeal under the Motor Vehicles Act. The right of appeal when it is provided is a substantive right. However, as indicated hereinbefore, an impairment of the right of appeal by putting restriction therein is permissible in law." 58. The right of appeal when it is provided is a substantive right. However, as indicated hereinbefore, an impairment of the right of appeal by putting restriction therein is permissible in law." 58. Various decisions of different High Courts and in particular the decision of Union of India vs. Mohindra Supply Co., reported in AIR 1962 SC 256 was noticed and it has observed:- "The Supreme Court followed the aforementioned decision and reiterated its views in no uncertain terms in the case of State of West Bengal vs. M/s. Gourangalal Chatterjee, reported in 1993(3) SCC 1 , wherein it was clearly held as follows :- The argument appears to be without any substance as sub-section (1) of the section 39 which is extracted below:- 1) An appeal shall lie from the following orders passed under this Act (and from D.O others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order :- (i) superseeding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where is an arbitration agreement; (vi) setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. 2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court:- Provided that an appeal could lie only from the orders mentioned in the sub-section itself. Since the order passed by the Single Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in section 39 it is obvious that no appeal could be filed against the order of the learned single Judge." 59. In K. Satyanarayan (supra) this court also noticed the decision of Shah Babulal Khimji (supra) and held that therein the Apex Court only held that section 104 read with Order 43 of the Code of Civil Procedure shall apply in a case where an order of injunction has been passed or refused or a prayer for appointment of receiver has been allowed or rejected. It was further held:- "The Supreme Court in Khimji's case nowhere stated that an appeal under clause 15 of the Letters Patent would be maintainable despite the bar contained in section 39 of the Arbitration Act. The Supreme Court merely while considering the question of right of appeal of a litigant under section 104 of the Code of Civil Procedure gave some illustrations. What the Supreme Court intended to convey was that an appeal before a Division Bench from the judgment of the learned Single Judge would lie before the same High Court under section 104 of the Code of Civil Procedure as well as the provisions of the Companies Act or Arbitration Act which are special statutes. There cannot be any doubt that an appeal from the order passed by the learned Single Judge of a High Court would be maintainable before the Division Bench of the said High Court, in terms of the relevant provisions of the Letters Patent thereof; but the same shall be subject to the restrictions imposed by special statutes. If an appeal does not lie from an order passed by the learned Single Judge in terms of section 39 of the Arbitration Act, there cannot be any doubt whatsoever that such an appeal would not be maintainable under clause 15 of the Letters Patent." 60. To the same effect a decision has been rendered by a Division Bench of this court in Sureka Steel Limited vs. Union of India, reported in 1998(1) CHN 12. 61. However, in a different context in Modi Korea Telecommunication Ltd. vs. Appcon Consultants Pvt. Ltd., reported in CLT 1999(1) HC 285, a Division Bench held that an appeal shall lie from an order purported to have been passed under Arbitration and Conciliation Act, 1996 in the event it is found that the said order has been passed without jurisdiction and not in terms of the provision of the said Act. No exception to the said dicta can be taken as an order passed without jurisdiction is no order in the eye of law. 62. Similar question came up for consideration before this court in Union of India & Anr. vs. Monoranjan Mondal & Ors., reported in 2000(1) C.L.J 1 wherein the court was considering the appealability of an order in terms of section 37(2) of the Arbitration and Conciliation Act, 1996. 62. Similar question came up for consideration before this court in Union of India & Anr. vs. Monoranjan Mondal & Ors., reported in 2000(1) C.L.J 1 wherein the court was considering the appealability of an order in terms of section 37(2) of the Arbitration and Conciliation Act, 1996. The Court held that no order would be appealable which does not come within the purview of section 37, even in terms of Clause 15 of the Letters Patent of this Court. 63. In State of West Bengal vs. R.C. Banerjee, reported in CLT 1999(1) HC 52, V.K. Gupta, J. speaking for the Division Bench of this court referring to the decision of Union of India vs. Mohindra Supply Co., reported in AIR 1962 SC 256 , held: "By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by clause 37 subject to the legislative power of the Governor-General in Council and also of the Governor-in-Council under the Government of India Act, 1935, and may in all respects be amended or altered in exercise of legislative authority. Under section 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away." 64. Yet again in Reckitt & Colman of India Ltd. vs. Jyothi Laboratories Ltd. & Ors., reported in CLT 1999(2) HC 230 Ruma Pal, J. (as she then was) speaking for the Division Bench while considering as to whether an appeal lies from an ad interim order or an order vacating exparte ad interim order held:- "The submission is unacceptable. All interim orders, including exparte ones are granted under Order 39 Rules 1 and 2 of the Code of Civil Procedure and may be vacated under Order 39 Rule 4. Orders under both these provisions are expressly appealable under Order 43 Rule 1, sub-rule (r). No distinction is drawn between the kinds of interim Orders, whether exparte or on contest (See: Motilal Singh vs. Shib (Chandra Bose, 75 CWN 233). Orders under both these provisions are expressly appealable under Order 43 Rule 1, sub-rule (r). No distinction is drawn between the kinds of interim Orders, whether exparte or on contest (See: Motilal Singh vs. Shib (Chandra Bose, 75 CWN 233). The decisions cited by the respondent No.1, namely, Shah Babulal Khimji vs. Jayaben D. Kania, (1981) 4 SCC 8 ; Narul Hoda vs. Amir Hasan, AIR 1972 Cal 449 (FB) and LCTLPL Palantappa Chettiar vs. M.R. Krishnamurthy Chetty, AIR 1968 Mad 1 (DB) do not hold to the contrary. In Shah Babulal Khimji's case it was made clear that the Civil Procedure Code applied to internal appeals in the High Court and that the provisions of the Code did not curtail but gave an additional right of appeal to those available under clause 15 of the Letters Patent. An order which is expressly appealable under the Code does not have to fulfil the requirement of being a 'Judgment' under clause 15." 65. Thus, in that case also Order 43 Rule 1 was take recourse to. If section 104 read with Order 43 of the Code of Civil Procedure are held to contain provision as regards appealability of the orders in the cases specified therein, the said provision must be invoked in its entirety and not in isolation. The matter may be different where an order is passed without jurisdiction wherein it may be contended that the same having not been passed in exercise of a power conferred upon the court under that provision, the bar of appeal is contained in the statute will be removed and clause 15 of the Letters Patent would come into play. 66. It is a well settled law that when a statute uses a language in the negative the same is mandatory in nature. Section 104 and Order 43 Rule 2 clearly state that apart from the orders passed which are specified therein no appeal shall lie from any other orders. The said provisions having been couched in negative language, may be held to 'be mandatory. 67. If the right of appeal is a creature of a statute, the same would be governed by the said statute. Whether an appeal under clause 15 of the Letters Patent will be maintainable or not when the matter is governed by a Special Statute will also have to be judged from the scheme thereof. 67. If the right of appeal is a creature of a statute, the same would be governed by the said statute. Whether an appeal under clause 15 of the Letters Patent will be maintainable or not when the matter is governed by a Special Statute will also have to be judged from the scheme thereof. For example, it may be noticed that despite no bar a Letters Patent appeal will not be maintainable from a judgment of learned Single Judge rendered under Representation of Peoples Act. 68. In Bunwari Lal & Sons vs. Union of India, reported in AIR 1981 Del 366 , a Division Bench of the Delhi High Court upon taking into consideration the decision in Hanskumar vs. Union of India, reported in AIR 1958 SC 947 and Collector, Varanasi vs. Gauri Shankar, reported in AIR 1968 SC 384 while considering the question of appealability of an award passed under the Defence of India Act held that the proceedings before the High Court would not be a judgment within the meaning of clause 10 of the Letters Patent. The said decision has recently been followed by a Division Bench of the Patna High Court in Union of India vs. Sanicharu Lakra, reported in 2000(1) B.L.J.R. 587 , holding Clause 10 of the Letters Patent of the Patna High Court which is in pari materia with clause 15 of the Letters Patent of this Court, will not be applicable. 69. Right of appeal must be found out from the statute. A right of appeal cannot be held to exist only on the ground of sympathy or hardship as has been' argued by Mr. Bose. Even if no leave is granted and the court passes a decree, such an order would become an appealable one, as and when a decree is passed in terms of section 105 of the Code of Civil Procedure. Thus, even in such a situation the defendant would not suffer any real prejudices. 70. Bose. Even if no leave is granted and the court passes a decree, such an order would become an appealable one, as and when a decree is passed in terms of section 105 of the Code of Civil Procedure. Thus, even in such a situation the defendant would not suffer any real prejudices. 70. Although it has been argued that section 104 read with Order 43 Rule 1 is exhaustive and no other order which has been specified therein would be an appealable one by reason of clause 15 of the Letters Patent having regard to a recent decision of the Apex Court in Hemlata Panda vs. Sukuri Dibya, reported in 2000(2) SCC 218 , we are of the opinion that we are bound by the said decision as therein said Shah Babulal Khimji (supra) fall for consideration and while considering the question as to whether the decision of New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corpn., reported in (1997) 3 SCC 462 , requires reconsideration. It was held:- "This was a case where a single Judge of the High Court sitting on the Original Side passed an order against which a Letters Patent appeal was filed. This Court held that the Letters Patent appeal was maintainable. The reason for this is that an appeal from the order of the subordinate court can be entertained in those circumstances provided by section 104(1). Where the original order is not passed by subordinate court but is passed by the High Court exercising original jurisdiction, then, if appeal under section 104(1) is not provided the Letters Patent may enable such a type of order to be appealable. This is exactly what was held in Shah Babulal Khimji case [ (1981) 4 SCC 8 ] and this is the reason why in New Kenilworth Hotel (P) Ltd. case [ 1997 (3) SCC 462 ] the said decision of Shah Babulal Khimji (supra) was distinguished." 71. As in the aforementioned case Shah Babulal Khimji (supra) has itself been analysed, the same would be binding on us but we have discussed the matter in great details with a hope that the matter may call for consideration in future. As in the aforementioned case Shah Babulal Khimji (supra) has itself been analysed, the same would be binding on us but we have discussed the matter in great details with a hope that the matter may call for consideration in future. In this judgment we have recorded our independent views having regard to the fact that the questions which have been posed before us had not been raised in any other case so that in the event the question arises in any other matter in future, these aspects of the matter may also be considered by the Apex Court. However although we have held that the appeal is maintainable, the learned Division Bench has gone into the fact of the matter and has held on merit that no case has been made out for interference with the impugned order. 72. As the reference was on a limited point, viz. as to whether the decision in 1997(1) CHN 287 was correct or not. We while answering the said question held that in view of the finding of fact arrived at by the Division Bench, there is no merit in this appeal which is accordingly dismissed. M.H.S. Ansari, J.: I agree. Appeal dismissed. S.N. Bhattacharjee, J: I agree. Prayer for stay of operation of the judgment and order is considered and refused.