Swami Shivramdasji Guru Ramsarandasji v. Vasantiben Dahyabhai Modi
2011-11-25
A.L.DAVE, J.B.PARDIWALA
body2011
DigiLaw.ai
JUDGMENT J.B.PARDIWALA ( 1. ) THE appellant seeks to challenge order dated 22.7.2011 passed by learned Single Judge in CA No. 4706 of 2011 preferred under the provisions of Order 22, Rule 4A of CPC and the consequent order passed by learned Single Judge on the same day i.e. 22.7.2011 in F.A No. 58 of 1987, declaring First Appeal No. 58 of 1987 as abetted on the demise of the original appellant. ( 2. ) THE facts relevant for the purpose of deciding this appeal can be summarised as under:- 2.1 One Ramsarandasji Guru Suryaprakasdasji preferred Civil Suit No. 2385 of 1980 in the City Civil Court at Ahmedabad, seeking order on the basis of a Will under the Succession Act. However, the Civil Suit No. 2385 of 1980 came to be dismissed. Aggrieved by the judgment and order passed by the Civil Court dismissing Civil Suit No. 2385 of 1980, original plaintiff late Ramsarandasji preferred F.A No. 58 of 1987 in this Court under Section 299 of Indian Succession Act. Record reveals that during the pendency of F.A No. 58 of 1987, original appellant - plaintiff Ramsarandasji passed away. THE appellant herein therefore, preferred Civil Application No. 7784 of 2007 with a prayer to implead him as party to F.A No. 58 of 1987, being legal representative of late Ramsarandasji. It appears that CA No. 7784 of 2007 came to be disposed of by learned Single Judge, directing the trial Court to decide an issue whether appellant herein is a legal representative of deceased Ramsarandasji, and whether he can be permitted to continue the First Appeal as a legal representative. THE relevant paras of learned Single Judge's judgment dated 21.3.2009 in CA No. 7784 of 2007 are reproduced below:- "6. THErefore, according to my opinion, in such circumstances, determination of question as to legal where has been arise whether person is or is not legal representative of deceased appellant or deceased defendant such question shall be determined by Court. This Court is having power under order 22 Rule 5 which is quoted as under:- "5.
THErefore, according to my opinion, in such circumstances, determination of question as to legal where has been arise whether person is or is not legal representative of deceased appellant or deceased defendant such question shall be determined by Court. This Court is having power under order 22 Rule 5 which is quoted as under:- "5. Determination of question as to legal representative :- Where a question arise as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:- Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return records together with evidence, if any recorded at such trial, its finding and reason therefor, and the Appellate Court may take the same into consideration in determining the question." 7. In view of aforesaid order 22 Rule 5 as appellant Court is having power to direct sub-ordinate Court to try question and to return records together with evidence, if any recorded at such trial, its finding and reason. Considering aforesaid provision, it is directed to City Civil Court, Ahmedabad to decide question whether applicant is legal representative of deceased appellant or not or whether he is entitled to represent estate or not and to decide it in respect to subject matter means property in question after giving reasonable opportunity of hearing to both parties and to pass appropriate reasoned order in accordance with law within a period of three months from date of said order. THE Trial Court, City Civil Court, Ahmedabad has to returned the papers of civil application to this Court after giving finding on issue which has been raised by applicant." 2.2 It appears that pursuant to the directions issued by this Court to decide the issue after leading evidence, trial Court passed an order dated 3.12.2010, holding that the appellant herein has failed to establish that he is a legal heir or representative of deceased Ramsarandasji in respect of property involved in F.A No. 58 of 1987. Record reveals that this order passed by the City Civil Court, Ahmedabad dated 3.12.2010 has not been challenged and the same has attained finality.
Record reveals that this order passed by the City Civil Court, Ahmedabad dated 3.12.2010 has not been challenged and the same has attained finality. 2.3 However, appellant herein preferred Civil application No. 4706 of 2011 under Section 146, 151, Order 22, Rule 10 and Order 22, Rule 4A of the Civil Procedure Code, praying that he may be permitted to continue the First Appeal No. 58 of 1987 as the original appellant late Ramsarandasji was a saint and had left behind only disciples. Appellant herein claims to be one of his disciples who would like to protect the interest of late Ramsarandasji in the property in question. 2.4 Learned Single Judge took notice of the earlier order passed by learned Single Judge dated 31.3.2009 disposing of Civil Application No. 7784 of 2011 and also order dated 3.12.2010 passed by City Civil Court, Ahmedabad and came to the conclusion that the appellant herein is not entitled to any discretionary relief under Order 22 Rule 4A of CPC. Learned Single Judge also took the view that the original Suit is also dismissed and therefore, it would not be appropriate to adjudicate the matter which already stood abetted. Learned Single Judge therefore, passed an order in F.A No. 58 of 1987 as under:- "Since the appellant has expired, this First Appeal stands abated." ( 3. ) WE have heard learned counsel Mr. Mehul Suresh Shah, appearing for the appellant. He would submit that the learned Single Judge has failed to consider the order at Annexure "A" and in disregard of it, order at Annexure "D" is passed. He would submit that learned Single Judge has erred in rejecting C.A No. 4706 of 2011 simply because respondent opposed the same, without deciding the merits of CA No. 4706 of 2011 and the law applicable in this regard. He submitted that the learned Single Judge has ignored the judgment rendered by learned Single Judge of this Court in SCA No. 17831 of 2003, allowing the appellant to represent the estate of the original appellant late Ramsarandasji, in another Suit against tenants in the suit property instituted by the respondents. ( 4. ) LEARNED counsel relied upon a decision of the Division Bench of this Court in the case of Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai, reported in 1977 GLR p.202.
( 4. ) LEARNED counsel relied upon a decision of the Division Bench of this Court in the case of Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai, reported in 1977 GLR p.202. Relying on this judgement, he submitted that order refusing to set aside the abatement of the appeal is clearly a final decision determining lis between the parties and as the order passed by the learned Single Judge was clearly on the original proceedings, Letters Patent Appeal against such judgment would be maintainable. He also relied on the decision of the Supreme Court in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University, reported in AIR 2001 SC 2552 . Relying on this judgment of the apex Court, he submitted that under Rule 10 Order 22, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested to apply to the Court for leave to continue the suit. He further relied on a decision of the Supreme Court in the case of Smt. Manjuri Bera Vs. Oriental Insurance Co.Ltd., reported in 2007 (3) GLR 2396. Relying on para 13 of the said judgment, learned counsel submitted that definition of the term "legal representative" as contained in Section 2, Clause 11 CPC is inclusive in character and its scope is wide and not confined to legal heirs only. Instead it stipulates that the person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. Relying on para 13, he further submitted that it includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. ( 5. ) THE question which we need to address is with regard to maintainability of the appeal in view of the Amendment Act, 2002 (Act No. 22 of 2002) made applicable with effect from 1.7.2002 in respect of Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") in terms of the said amending Code.
( 5. ) THE question which we need to address is with regard to maintainability of the appeal in view of the Amendment Act, 2002 (Act No. 22 of 2002) made applicable with effect from 1.7.2002 in respect of Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") in terms of the said amending Code. Section 100A of the Code was amended and reads as under:- "100A. 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 original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge." ( 6. ) THE appeal was filed under Section 299 of the Indian Succession Act, which runs as follows:- "299 . Appeals from orders of District Judge - Every order may 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 the Code of Civil Procedure, 1908, applicable to appeals." Thus, the only question for our consideration is whether an appeal is maintainable or not in view of the newly added provision of Section 100A of the Code. According to the amended provisions of the Code, in case an appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force. As stated above, the appeal was filed under Section 299 of the Act. ( 7. ) BEFORE we proceed to decide the issue of maintainability of this appeal, it is necessary for us to observe that there are two orders under challenge before us. The first order is the order passed by learned Single Judge rejecting the application preferred by the appellant under Order 22 Rule 4A of CPC and the second order is the consequential order of abatement of the appeal.
The first order is the order passed by learned Single Judge rejecting the application preferred by the appellant under Order 22 Rule 4A of CPC and the second order is the consequential order of abatement of the appeal. We take judicial notice of the fact that in the application which was preferred by the appellant, many provisions of law have been quoted. The application is said to have been preferred under Sections 146 and 141 of CPC including Order 22, Rule 10 and Order 22, Rule 4A of CPC. We are not able to understand as to which provision of law was in fact invoked by the appellant, but in any case, the application could not have been under four different provisions of CPC. However, we take notice of the fact that learned Single Judge treated the application to be one under Order 22, Rule 4A of CPC as it is evident from the finding recorded by the learned Single Judge in the impugned order. In this background, we need to decide the following issues:- 1. Whether a Letters Patent Appeal would be maintainable against an order passed by learned Single Judge under Order 22 Rule 4A of CPC in pending proceedings of First Appeal preferred under Section 299 of the Succession Act 2. Whether a Letters Patent Appeal would be maintainable against the order passed by learned Single Judge under the provisions of Order 22 Rule 10 of CPC in pending proceedings of First Appeal preferred under Section 299 of the Succession Act 3. Whether the order passed by learned Single Judge rejecting the application preferred by the appellant under Order 22 Rule 4A and Order 22 Rule 10 of CPC can be said to be in exercise of ordinary civil jurisdiction or first Appellate jurisdiction 4. Whether the order passed by learned Single Judge declaring First Appeal as abated on the demise of the appellant can be said to be a judgment and decree within the meaning of Section 100A of CPC ( 8. ) IT is an admitted fact that since learned Single Judge rejected the application preferred by the appellant under Order 22 Rule 4A and Order 22 Rule 10 of CPC as well and leave was accordingly refused to continue the First Appeal, the First Appeal stood abated and indirectly learned Single Judge refused to set aside the order of abatement of appeal.
Now, the moot question would be as to whether the order passed by learned Single Judge under Order 22 Rule 4A or Order 22 Rule 10 of CPC would be in original jurisdiction or first Appellate jurisdiction because the application under Order 22 Rule 4A or Order 22 Rule 10 was preferred in a pending First Appeal preferred by the original appellant under Section 299 of the Succession Act. If this Court comes to the conclusion that the same was passed in exercise of first Appellate jurisdiction, then obviously Letters Patent Appeal would not be maintainable. ( 9. ) AT this stage, it would be expedient to refer to the provisions of Clause 15 of the Letters Patent, which reads as follows:- "15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.
( 9. ) AT this stage, it would be expedient to refer to the provisions of Clause 15 of the Letters Patent, which reads as follows:- "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 [Madras], [Bombay], Fort William in Bengal from the judgement (not being a judgement 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 a revisional jurisdiction, and not being a sentence or order passed or made in 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 judgement 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, [on or after the first day of February 1929] 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 judgement declares that the case is a fit one for appeal; but that the right of appeal from other judgement of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided." It could very well be visualised from the plain perusal of the aforesaid provision that Clause 15 of the Letters Patent providing for intra-court appeal will not be attracted if the impugned order is passed in exercise of first appellate jurisdiction.
An order of a Single Judge exercising appellate jurisdiction obviously is governed by a special enactment applicable in the present case, like Succession Act or by the provisions of CPC, as the case may be and not by those of the Letters Patent. The appellant before us presented application under Order 22 Rule 4A and Order 22 Rule 10 of CPC and the impugned order rejecting the application was passed in exercise of appellate jurisdiction and it could not be said to be in exercise of the original powers or jurisdiction of the learned Single Judge. Orders made by a Single Judge in exercise of appellate jurisdiction are not appealable under Clause 15. This proposition is extensively explored, exhaustively expounded and very well settled requiring no further detailed or meticulous articulation of principles. ( 10. ) LEARNED Counsel for the appellant vehemently submitted relying on a Division Bench judgment of this Court in the case of Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai, reported in 1977 GLR p.202 that the order refusing to set aside abatement of the appeal is clearly a final decision determining lis between the parties and thus the order would clearly be on the original proceedings. He would submit that therefore, Letters Patent Appeal would be maintainable. ( 11. ) IN this connection, a Full Bench decision of this Court in the case of Khevinaben R. Patel Vs. Jagdishchandra J. Desai, reported in 1994 (1) GLR 344 (F.B) answers the question in absolute terms. This Full Bench judgment has considered the case of Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai (supra). We would like to quote below paragraphs 20, 21, 22 and 23. "20. Now, we will take up the second aspect as to whether the jurisdiction exercised by the learned single Judge and in which he made the order, subject-matter of this Letters Patent Appeal, is one, which permits an appeal to a Division Bench under Clause 15 of the Letters Patent.
"20. Now, we will take up the second aspect as to whether the jurisdiction exercised by the learned single Judge and in which he made the order, subject-matter of this Letters Patent Appeal, is one, which permits an appeal to a Division Bench under Clause 15 of the Letters Patent. Under Clause 15 of the Letters Patent, the following categories of decisions are being excluded from being amenable to an appeal to a Division Bench of the High Court : (i) A judgment passed in exercise of appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court; (ii) An order made in exercise of revisional jurisdiction; and (iii) A sentence or order passed or made in exercise of the power of superintendence under the provisions of Sec, 107 of the Government of INdia Act or in exercise of Criminal jurisdiction of one Judge of the High Court or one Judge of the Division Court pursuant to Sec. 108 of the Government of INdia Act. An exception has been set down as follows : xxx ...... 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 See. 108 of the Government of INdia Act made on or after the first day of February 1929, in 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;...... (Emphasis supplied) Under the Letters Patent, various jurisdictions are conferred on the High Court. Broadly classified, they are Ordinary Original Civil Jurisdiction, Extra-ordinary Original Civil Jurisdiction, Appellate Jurisdiction from subordinate Courts, Jurisdiction as to INfants and Lunatics, INsolvency Jurisdiction, Criminal Jurisdiction, Testamentary Jurisdiction, and Matrimonial Jurisdiction. So far as intra-Court appeals are concerned, we cannot lose sight of the exclusions spoken to in Clause 15 of the Letters Patent. An order made in exercise of Revisional Jurisdiction is specifically excluded under Clause 15 of the Letters Patent. There is no escape from it.
So far as intra-Court appeals are concerned, we cannot lose sight of the exclusions spoken to in Clause 15 of the Letters Patent. An order made in exercise of Revisional Jurisdiction is specifically excluded under Clause 15 of the Letters Patent. There is no escape from it. Revival, putting an end to, on technical or other preliminary grounds, deciding finally, shutting out even at the inception, of proceedings, are all in and relatable only to the specified jurisdictions and powers conferred on the Court and invoked. There could not be a mixing up of jurisdictions or powers conferred on the Court and invoked for initiation of proceedings. If and when a particular jurisdiction or power is invoked for initiation of proceedings, it is not possible to dissociate the related steps or proceedings from the main proceedings initiated under that jurisdiction and power. The nature of the main proceedings will decide the nature of all the proceedings relatable to it. It will not be proper to import a concept of an independent proceeding; nor is it possible to give the proceeding relatable to the main proceeding the character of an original proceeding. The concept of an original proceeding in that context, in our view, would be a misnomer. A jurisdiction or a power invoked must govern all the proceedings relatable to the main proceeding. If the proceeding is not relatable to the main proceeding, any order passed in such proceeding could not have any effect on the main proceeding. But the intendment of the related proceeding is only to have effect on the main proceeding and hence, the nexus could not be snapped or lost by calling the related proceeding an independent proceeding, or an original proceeding One kind of jurisdiction or power invoked will continue to have that character alone despite innumerable proceedings cropping up or branching out of the main proceeding thereunder. The nature of the jurisdiction and power invoked, for the main proceeding will decide the nature of the jurisdiction and power invoked in respect of all the proceedings relatable to it." "21. Mr. Mohit S. Shah, learned Counsel for the appellant, would on the second aspect, place reliance on the pronouncement of a Bench of this Court in Shantilal Chandrashanker and Anr. v. Bai Basi, widow of Bhura Anop., XVI (1975) GLR 1.
Mr. Mohit S. Shah, learned Counsel for the appellant, would on the second aspect, place reliance on the pronouncement of a Bench of this Court in Shantilal Chandrashanker and Anr. v. Bai Basi, widow of Bhura Anop., XVI (1975) GLR 1. That was the case of a Second Appeal getting dismissed, on merits, even at the admission stage when the Counsel for the appellant was absent and there was a refusal to restore the Second Appeal and re-admit it. A Bench of this Court held that it was not open for the appellate Court to dismiss an appeal, on merits, at admission stage, if, when the matter was called on for hearing, the appellant or his Advocate was absent and the only order the appellate Court could pass in such circumstances was to dismiss the appeal for default, and even if the appellate Court purports to dismiss the appeal on merits, it would be an order of dismissal of the appeal for default, Learned Amicus Curiae, who assisted the Bench, seemed to have pointed out that the Letters Patent Appeal was not maintainable. However, the Bench opined that the order finally disposed of the rights of the parties and was really an order on an original proceeding, viz; on an application for restoration and hence, the Letters Patent Appeal would lie and be maintainable. Here, we are duty bound to point out that in the Report, proper punctuation is missing and the reading of the passage without punctuation seems to convey as if the learned Amicus Curiae suggested the proposition, which formed the opinion of the Bench. Supplementing the punctuation, the relevant passage in the pronouncement conveys only the opinion of the Bench, as we have recapitulated above. IN view of our preceding discussion, we are not in a position to subscribe our support to the above opinion of the Bench." "22. Mr. Mohit S. Shah, learned Counsel for the appellant, would also place reliance on a pronouncement of a subsequent Bench of this Court in Chamar Govindbhai Hirabhai v. Harijan Tababhai Alabhai, XVIII (1977) GLR 202. to say that the learned single Judge must have exercised only original jurisdiction when he allowed the applications of the respondent in this Letters Patent Appeal, who was the applicant in the Civil Revision Application.
to say that the learned single Judge must have exercised only original jurisdiction when he allowed the applications of the respondent in this Letters Patent Appeal, who was the applicant in the Civil Revision Application. The Bench, in the above pronouncement, was concerned with the order of the learned single Judge, refusing to set aside the abatement of a Second Appeal. The Bench held that the order would be a judgment, within the meaning of Clause 15 of the Letters Patent. However, the Bench referred to the pronouncement of the earlier Bench in Shantllal Chandrashanker and Am, v. Bai Basi, Widow of Bhura Anop, XVI (1975) GLR 1, to say that when the Second Appeal abated, the application taken to set aside abatement must be held to be an original proceeding and hence, an appeal against an order, refusing to set aside abatement, is maintainable under Clause 15 of the Letters Patent without any certificate of the learned single Judge. While, in this case, we have no opinion to offer as to whether an order, refusing to set aside the abatement, would be a judgment or not, as we have already made it clear, certainly, we are not subscribing our support to the theory that an application to set aside abatement of a Second Appeal is an original proceeding. We have already pointed out that the concept of an original proceeding would be a misnomer in the said context." "23. IN the light of our above discussion, we hold : (i) firstly that the order of the learned single Judge, in the present case, is not a judgment, within the meaning of Clause 15 of the Letters Patent; And (ii) secondly, the jurisdiction and the power, under which the learned single Judge made the order, is revisional jurisdiction and is revisional power, and they are specifically excluded from the purview of Clause 15 of the Letters Patent and hence, no intra-Court appeal is permissible. Accordingly, we dismiss this Letters Patent Appeal as not maintainable. We make no order as to costs." ( 12. ) THE decision in Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai (supra) was also a subject matter of consideration before Division Bench of this Court in the case of Babulal Ambalal Patel Vs. Maniben W/o Narayanbhai Punjiram Patel, reported in 1993 (2) GLR 1312 . THE Division Bench in paragraphs 7 and 8 observed as under:- "7.
) THE decision in Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai (supra) was also a subject matter of consideration before Division Bench of this Court in the case of Babulal Ambalal Patel Vs. Maniben W/o Narayanbhai Punjiram Patel, reported in 1993 (2) GLR 1312 . THE Division Bench in paragraphs 7 and 8 observed as under:- "7. THEn the further question that comes up for consideration is what is the nature of the jurisdiction exercised by the learned single Judge, when he dismissed the application for condonation of delay in preferring the Second Appeal. An application for condonation of delay would arise in original jurisdiction or first appellate jurisdiction, or second appellate jurisdiction. THE entertaining of such application and disposal of it are not independent of the main proceedings in relation to which it is filed. THE filing of an application for condonation of delay is inextricably related to and connected with the main proceedings, concerning which it is filed. THE nature of the main proceedings will decide the nature of the jurisdiction. If the said application is filed in relation to original proceedings, the jurisdiction invoked will be original. If it is filed in first appellate proceedings the jurisdiction will be first appellate. If it is filed in second appellate proceedings the jurisdiction involved would be second appellate. An application for condonation of delay has no independent existence de hors the main proceedings in which it is filed. Here in the present case the application for condonation of delay in preferring the second appeal must be held to have been dealt with only in second appellate jurisdiction. 8However, Mr. K. B. Padia, learned Counsel for the appellants in the Letters Patent Appeal, would draw our attention to a pronouncement of a Bench of this Court in Chamar Govindbhai Hirabhii v. Harljan Tababhai Alabhai, (1977) XVIII GLR 202 to say that the learned single Judge must be held to have exercised only original jurisdiction when he declined to condone the delay in preferring the Second Appeal. In that case, a Bench of this Court was asked to deal with an order made by the learned single Judge;, refusing to set aside the abatement in a Second Appeal.
In that case, a Bench of this Court was asked to deal with an order made by the learned single Judge;, refusing to set aside the abatement in a Second Appeal. THE Bench of this Court opined that the very Second Appeal having abated by operation of law, there was no question of the learned single Judge exercising any appellate jurisdiction and the order passed by the learned single Judge was clearly on the original proceeding, which was taken by filing the petition to set aside the abatement. THE Bench referred to a further earlier pronouncement of Bench of this Court in Shantual Chandrashanker v. Bai Basi, (1975) XVI GLR 1. But we find that in the further earlier pronouncement referred to above, the Bench noted the statement of the learned Amiens Curiae appointed by Court that an order refusing to restore a second appeal and re-admit it, finally disposed of the rights of the parties and as really an order on an original proceeding and the Bench proceeded to deal with the question on that footing without further discussion- We need not express any opinion of ours on the questions, which specifically arose before the earlier Benches of this Court, either following or choosing to diner from them, since on the facts presented in this case, we have no occasion to enter into the field of investigating into those questions. Here, we are concerned with an order made by the learned single Judge, declining to condone the delay in filing the Second Appeal. That question never came up for consideration in the earlier pronouncements. As we discussed earlier, the papers in the Second Appeal got presented with delay and an application for condonation of delay has been taken, seeking an entry for the Second Appeal after the condonation of delay. It is not possible to dissociate the application for condonation of delay from the proceedings in the Second Appeal. If there is no Second Appeal, there is no question of an application for condonation of delay in preferring the Second Appeal. When there is a decline to entertain the application for condonation of delay in preferring the Second Appeal, the further process of and progress in the Second Appeal are put an end to.
If there is no Second Appeal, there is no question of an application for condonation of delay in preferring the Second Appeal. When there is a decline to entertain the application for condonation of delay in preferring the Second Appeal, the further process of and progress in the Second Appeal are put an end to. THE learned single Judge entertained and disposed of the application for condonation of delay in preferring the Second Appeal only in the second appellate jurisdiction." ( 13. ) WHAT can be deduced from the Full Bench judgment in the case of Khevinaben R. Patel Vs. Jagdishchandra J. Desai (supra) and in the case of Babulal Ambalal Patel Vs. Maniben (supra) that the ratio as laid down in the case of Chamar Govindbhai Hirabhai Vs. Harijan Tababhai Alabhai (supra) has not been approved. Full Bench judgment has made very abundantly clear that it is difficult to subscribe support to the theory that an application to set aside an abatement of a Second Appeal is "an original proceeding". Therefore, reliance placed by the learned Counsel on the judgment of Chamar Govindbhai Hirabhai Vs. Harijan TababhaiAlabhai (supra) would not be of any consequence. In the present case, the application preferred by the appellant under Order 22 Rule 4A and Order 22 Rule 10 arose in first appellate jurisdiction. The entertaining of such application and disposal of it are not independent of the main proceedings in relation to which it is filed. The filing of an application under Order 22 Rules 4A or 10 is inextricably co-related to and connected to the main proceedings, concerned which it is filed. The nature of the main proceedings will decide the nature of the jurisdiction. If the said application is filed in relation to original proceedings, the jurisdiction invoked will be original. If it is filed in first appellate proceedings, the jurisdiction will be first appellate. If it is filed in second appellate proceedings, the jurisdiction involved would be second appellate. In our view, an application under Order 22, Rule 4A or Order 22 Rule 10 has no independent existence de hors the main proceedings in which it is filed. It is in this context that the Full Bench has observed that the nature of the main proceedings will decide the nature of all the proceedings relatable to it.
In our view, an application under Order 22, Rule 4A or Order 22 Rule 10 has no independent existence de hors the main proceedings in which it is filed. It is in this context that the Full Bench has observed that the nature of the main proceedings will decide the nature of all the proceedings relatable to it. It will not be proper to import a concept of an independent proceeding, nor is it possible to give the proceeding relatable to the main proceeding the character of an original proceeding. This is the reason why Full Bench has said that the concept of an original proceeding in that context would be a misnomer. ( 14. ) WE have also tried to examine the matter from a different angle. In order to determine the nature of the power which the learned Single Judge exercised, it is essential to understand whether learned Single Judge could have passed an order under Order 22 Rule 4A de hors the exercise of the appellate jurisdiction in a substantive proceeding which might have been moved before him independent of the appellate proceeding of which learned Single Judge was seized. If the answer is in the negative, the inference must be that the learned Single Judge was exercising appellate jurisdiction. Assuming that the order under Order 22 Rule 4A of CPC was made in exercise of original jurisdiction, all orders made in exercise of the original jurisdiction are not appealable, inasmuch as Civil Procedure Code does not provide for an Appeal from an Order passed under the provisions of Order 22 Rule 4A. If a specific enactment makes the order of learned Single Judge not capable of being appealed against, the appeal provided by Letters Patent will not lie. In taking this view, we are fortified by a Division Bench judgment of this Court in the case of Bhikhabhai Kalyanbhai Vs. Pirabhai Vaghabhai, reported in 1988 (2) GLR 1282 . The Division Bench has observed as under:- "In the case of Jayant Vrajlal Ajmera v. Jayantkumar Motichand Doshi reported in 1985 (2) GLR 710 a Bench of this High Court had an occasion to consider whether an appeal under Letters Patent will lie against an order passed by a single Judge in the exercise of a revisional jurisdiction. In that case, pending a Civil Revision Petition, a single Judge of this High Court granted an interim order.
In that case, pending a Civil Revision Petition, a single Judge of this High Court granted an interim order. The parties who were aggrieved by the said order, filed a review application on the said interim order without success. Then they sought permission to file a Letters Patent Appeal against the interim order passed by the learned single Judge in the Civil Revision Petition. In those circumstances, the Bench of this High Court held (at page 713 of GLR) : The crux of the problem, in order to determine the nature of the power which the learned single Judge was exercising, is that could he have made this order de hors the exercise of the revisional jurisdiction in a substantive proceeding which might have been moved before him independent of the revisional proceeding of which he was seized. If the answer is in the negative, the inference must be that the Judge was exercising revision jurisdiction. Continuing,the Bench held : Even assuming that this is an order made in exercise of original jurisdiction, all orders made in exercise of the original jurisdiction are not appealable and inasmuch as the Civil Procedure Code does not provide for an appeal from an order of the nature as the one with which we are concerned in the present proceedings Letters Patent Appeal would not be competent. If a specific enactment makes an order of the learned single Judge not capable of being appealed against, the appeal provided by Letters Patent will not prevail. 5.In that view, the Bench of this High Court refused to grant the leave prayed for. While deciding so the Bench of this High Court relied upon the decision reported in (South Asia Industries v. S. B. Sarup Singh), AIR 1965 SC 1442 also. Thus, the above said decision in all force applies to the facts of the present case also." Thus, we are of the firm view that no Letters Patent Appeal would be maintainable against an order passed by learned Single Judge in exercise of powers under Order 22 Rule 4A or Order 22 Rule 10 of CPC in exercise of appellate jurisdiction i.e. in a pending First Appeal. ( 15.
( 15. ) WE may now go to the second issue as to whether the order passed by learned Single Judge declaring the appeal as having abated on the demise of the appellant would be covered within Section 100A of CPC. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22 Rule 9 Clause (1) of CPC that no fresh Suit could be brought on the same cause of action. Therefore, when the appeal abates, there is no decree in substance. However, the order can definitely be termed as a judgment, if not a decree. After introduction of S. 100A in the Code of Civil Procedure by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a learned Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that S. 100A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of 'judgment' in S. 2(9) Civil P. C. is "much wider and more liberal", intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of O. 43 R. 1 and also such other orders which posses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a Court, no further appeal shall lie. Even otherwise, the word "judgment" as defined u/S. 2(9) means a statement given by a Judge on the grounds of a decree or order.
Amended Section 100A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a Court, no further appeal shall lie. Even otherwise, the word "judgment" as defined u/S. 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus, no Letters Patent Appeal would be maintainable against an order passed by learned Single Judge in exercise of powers under Order 22 Rule 4A or Order 22 Rule 10 of CPC in exercise of appellate jurisdiction i.e. in a pending First Appeal. The newly incorporated S. 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a learned single Judge to a Division bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a learned Single Judge. It has to be kept in mind that the special statute only provides for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a learned Single Judge. No Letters patent Appeal shall lie against a judgment/order passed by a learned Single Judge in an appeal arising out of a proceeding under a Special Act. ( 16. ) WE may quote with profit a Full Bench ruling of Orissa High Court in the case of Mahammed Saud and ors. Vs. Dr. (Maj.) Shaikh Mahfooz - AIR 2009 Orissa 46. WE may quote paras 28, 29, 37, 39 and 47. "28. Mr. Sarangi further submitted that S. 100-A of the Code as amended by the 2002 Amendment Act having stipulated "No further appeal shall lie from the judgment and decree of such single Judge" cannot be stretched to orders passed under S. 104 also, and the decision of a single Judge in such appeal being orders can be assailed in LPA. One of the contentions raised by Mr. Sarangi is that the restrictions of S. 100-A, CPC relate to only judgments and decrees.
One of the contentions raised by Mr. Sarangi is that the restrictions of S. 100-A, CPC relate to only judgments and decrees. He submitted that the orders passed while deciding matters filed under O. 43, R. 1, CPC cannot be construed as judgment or decree and hence the bar imposed shall not be applicable. In the case of ERMC Planning and Design Institute Ltd. v. Union of India, AIR 2001 SC 883 , the Supreme Court while dealing with the expression 'judgment' observed that the said expression has not been defined in Letters Patent. It is well settled that the definition of 'judgment' in S. 2(9), CPC is "much wider and more liberal." In the said judgment it is pointed out that intermediary or interlocutory judgment fall in the category of orders referred to Cls. (a) to (w) of O. 43, R. 1 and also such other words which possess the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. The contention of Mr. Sarangi is, therefore, not tenable." "29. To appreciate the argument it would also be prudent to refer to amended S. 100-A of the Code which clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a Court, no further appeal shall lie. Even otherwise, the word "judgment" as defined under S. 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a single Judge in an appeal filed under S. 104, CPC a further appeal lies to a Division Bench cannot be accepted. It is no more res integra that an order under O. 43, R. 1, CPC is an interlocutory judgment although it does not qualify the term of a judgment in terms of S. 2(9), CPC. (See ERMC Mine Planning and Design Institute Ltd. v. Union of India, AIR 2001 SC 883 and Midnapore People's Co-operative Bank Ltd. v. Chunilal Nanda, AIR 2006 SC 2190 ." "37.
(See ERMC Mine Planning and Design Institute Ltd. v. Union of India, AIR 2001 SC 883 and Midnapore People's Co-operative Bank Ltd. v. Chunilal Nanda, AIR 2006 SC 2190 ." "37. Relying on a number of decisions it was held that the legislative intention and the public policy in bringing amendment of CPC are for attaining finality to a lis by cutting short the provisions which would otherwise be misutilised by litigant for prolonging the litigation to the prejudice of the opponent and as such this Court held that no appeal against an order of the learned single Judge passed on an application under Art. 227 of the Constitution of India is maintainable before a Division Bench. A similar view was also expressed by a Full Bench of the Madhya Pradesh High Court in the case of Manoj Kumar v. Board of Revenue, AIR 2008 MP 22 ." "39. Mr. S. S. Rao while supporting the arguments advanced by Mr. Routray added that the Legislature intended to exclude Letters Patent Appeal and specifically did so by introduction of S. 100-A to the Code by 2002 Amendment Act. A reading of the provision clearly indicates the intention of the Legislature for specific exclusion of appeal against judgment/decree/order passed by a learned single Judge. In other words, according to Mr. Rao by virtue of S. 100-A no Letters Patent Appeal is maintainable. According to him, a writ appeal will also not be maintainable against an order/judgment passed by a learned single Judge in a proceeding under Art. 227 of the Constitution; whereas the said bar does not apply to writ appeals filed against orders/judgments passed under Arts. 226 and 227 of the Constitution." "47. WE have learned counsel for the parties patiently, noted the citations carefully, perused the materials meticulously and considered the submissions pragmatically and for the discussions made above, we have arrived at the following conclusions :- (1) After introduction of S. 100-A in the Code of Civil Procedure by 2002 Amendment Act, no Letters Patent Appeal is maintainable against a judgment/order/decree passed by a learned single Judge of a High Court. (2) The decision of a Division Bench of this Court in Birat Ch. Dagara case (supra) has not laid down the correct position of law. On the other hand, the conclusions arrived at by Division Benches of this Court in V. N. N. Panicker and Ramesh Ch.
(2) The decision of a Division Bench of this Court in Birat Ch. Dagara case (supra) has not laid down the correct position of law. On the other hand, the conclusions arrived at by Division Benches of this Court in V. N. N. Panicker and Ramesh Ch. Das cases (supra) are held to be good law and are confirmed. (3) A writ appeal shall lie against the judgment/orders passed by a learned single Judge in a writ petition filed under Art. 226 of the Constitution of India. In a writ application filed under Arts. 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Art. 226, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/ decree passed by a single Judge exercising powers of superintendence under Art. 227 of the Constitution. (4) No Letters Patent Appeal shall lie against judgment/order passed by a learned single Judge in proceedings arising out of Special Acts. The reference to the Full Bench is accordingly answered." ( 17. ) DIVISION Bench of this Court while deciding a batch of Letters Patent Appeals arising from First Appeals preferred under Section 173 of the Motor Vehicles Act, 1988. The DIVISION Bench, after considering the judgments of various High Courts and the Supreme Court, held as under:- "25.1 Motor Vehicles Act admittedly does not provide for any further appeal against the appellate judgment of the single Judge under Section 173 of the Motor Vehicles Act. Such a right to appeal therefore, can be traced only under the Letters Patent. If by virtue of Section 100A of the Code as amended with effect from 1.7.2002, such a right has been specifically taken away and such debarment of right is express and begins with a non obstante clause, there remains no provision in any statute which would permit aggrieved party to appeal before the High Court itself against the judgement of a single Judge. 25. Having thus concluded in unequivocal terms and finding that by virtue of amendment in Section 100A of the Code with effect from 1.7.2002, Letters Patent Appeal against judgement of Learned Single Judge rendered in appeal under Section 173 of the Motor Vehicles Act would not be maintainable, we need to deal with one last issue before concluding the judgement.
25. Having thus concluded in unequivocal terms and finding that by virtue of amendment in Section 100A of the Code with effect from 1.7.2002, Letters Patent Appeal against judgement of Learned Single Judge rendered in appeal under Section 173 of the Motor Vehicles Act would not be maintainable, we need to deal with one last issue before concluding the judgement. We may recall that learned advocate Shri Shalin Mehta relying on the decision in case of Garikapati Veeraya v. N. Subbiah Choudhry and other (supra), contended that amendment in Section 100A of the Code would apply only in cases where Claims Petitions were filed after 1.7.2002. In the said decision, in para. 23 it was held inter-alia that the right of appeal is not a mere matter of procedure but is a substantial right and that the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. In the same breath, however, the Apex Court also observed that this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." 26.1 In case of Kamal Kumar Dutta and another v. Ruby General Hospital Ltd. and others(supra), the Apex Court examined the applicability of Section 100A of the Code as amended with effect from 1.7.2002 to the judgement of the single Judge in appeal under Section 10-F of the Companies Act. The Bench held that Letters Patent Appeal would be barred by virtue of Section 100A of the Code. Dealing with the contention that such exclusion of right to appeal would apply only in cases which arise after the amendment, the Apex Court held and observed as under: "22 So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment either expressly or by necessary intendment. Parliament while amending section 100A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of learned single Judge to the DIVISION Bench.
Parliament while amending section 100A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of learned single Judge to the DIVISION Bench. Section 100A of the Code of Civil Procedure reads as follows: " 100A. 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 original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge." 23. Therefore, where appeal has been decided from an original order by a single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by the CLB and against that appeal has been provided before the High Court under Section 10F of the Act, that is an appeal from the original order. Then in that case no further Letters patent appeal shall lie to the DIVISION Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where learned single Judge hears an appeal from the original order. Original order in the present case was passed by the CLB exercising the power under Sections 397 and 398 of the Act and appeal has been preferred under section 10F of the Act before the High Court. Learned single Judge having passed an order, no further appeal will lie as the Parliament in its wisdom has taken away its power. Learned counsel for the respondents invited our attention to a letter from the then Law Minister. That letter cannot override the statutory provision. When the statute is very clear, whatever statement by the Law Minister made in the floor of the House, cannot change the words and intendment which is borne out from the words. The letter of the Law Minister cannot be read to interpret the provisions of Section 100A.
That letter cannot override the statutory provision. When the statute is very clear, whatever statement by the Law Minister made in the floor of the House, cannot change the words and intendment which is borne out from the words. The letter of the Law Minister cannot be read to interpret the provisions of Section 100A. The intendment of the Legislature is more than clear in the words and the same has to be given its natural meaning and cannot be subject to any statement made by the Law Minister in any communication. The words speak for itself. It does not require any further interpretation by any statement made in any manner. Therefore, the power of the High Court in exercising Letters patent in a matter where a single Judge has decided the appeal from original order, has been taken away and it cannot be invoked in the present context. There is no two opinion in the matter that when the CLB exercises its power under Section 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a court but it has all the trapping of a court. Therefore, the CLB while exercising its original jurisdiction under Sections 397 and 398 of the Act passed the order and against that order appeal lies to the learned single Judge of the High Court and thereafter no further appeal could be filed." ( 18. ) WE have to our advantage a Division Bench judgment of the Patna High Court in the case of Balbhadra Singh Vs. Ram Binod Singh and ors. - AIR 2005 Patna 87, where the issue was identical like the one in the present appeal. Before the Division Bench of the Patna High Court also, a Letters Patent Appeal was filed against the judgment passed by learned Single Judge in exercise of first appellate jurisdiction, preferred under Section 299 of the Succession Act. The Division Bench, taking the view that the Letters Patent Appeal would not be maintainable, held as under:- "... The settled law, as appears from the judgment of the Apex Court, is that right to hear appeal under the Letters Patent is the constitutional power of the High Court and no exclusion can be inferred unless the statute concerned has expressly barred appeal under the Letters Patent or further appeal.
The settled law, as appears from the judgment of the Apex Court, is that right to hear appeal under the Letters Patent is the constitutional power of the High Court and no exclusion can be inferred unless the statute concerned has expressly barred appeal under the Letters Patent or further appeal. However, in none of the cases aforementioned, the effect of Section 100A of the Code was under consideration. Section 100A of the Code, as quoted above, provides, inter alia, that notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge. So, in view of this non obstante clause, after the new amendment, even if there is no express prohibition limiting the Letters Patent Appeal or there is a provision of a Letters Patent Appeal, further appeal is barred from the judgment or order passed by a learned Single Judge in exercise of the first appellate jurisdiction. "...... As held by the Supreme Court in the case referred to above, the order passed in a proceeding under Section 299 of the Act is in the nature of judgment and once the same is passed by a learned single Judge of the High Court in an appeal under Section 299 of the Act, it is also a judgment of the High Court and in that view of the matter further appeal under the Letters Patent is excluded after the aforesaid amendment. The judgment heavily relied upon by learned counsel for the appellant, in our view, has not considered the effect of Section 100A of the Code, on the other hand, it has only noticed the same as that was not an issue before the Apex Court.
The judgment heavily relied upon by learned counsel for the appellant, in our view, has not considered the effect of Section 100A of the Code, on the other hand, it has only noticed the same as that was not an issue before the Apex Court. The said amendment in the Code has changed the situation and the very object of the provision of Section 100A of the Code is that once the matter has been decided by the High Court in exercise of the jurisdiction under any law and in spite of there being any provision in any Letters Patent or in any other instrument having the force of law, or in any other law for the time being in force, further appeal against the judgment or decree passed by the learned single Judge against the judgment and order passed by the Court below is not maintainable." ( 19. ) WE may also quote decision of the apex Court in the case of Salem Advocate Bar Association, T.N Vs. Union of India, reported in AIR 2003 SC 189 , where the vires of the new amended provision of the Code were challenged, and the said provision of Section 100A of the Code was held to be valid. In paragraph 15 of the judgment, the apex Court observed as under:- "15. Section 100-A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court. Where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-court appeal does not arise. It may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily.
It may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. WE do not find that any prejudice would be caused to the litigants by not providing for intra-court appeal, even where the value involved is large. In such a case, the High Court by rules, can provide that the Division Bench will hear the regular first appeal. No fault can thus, be found with the amended provision Section 100A." ( 20. ) WE also have to our advantage a Division Bench judgment of the Delhi High Court in the case of Satish Chander Sabharwal Vs. State, reported in 2005 DRJ 83-40, in which the Delhi High Court held as under:- "13. The Apex Court has also considered this issue in respect of the Indian Succession Act, 1925 (hereinafter to be referred as 'the said Act') itself in Subal Paul V. Malina Paul and anr. JT 2003 (5) SC 193 wherein it was held that a Letters Patent Appeal challenging the decision of single Judge would be maintainable. It was held that Section 104 of the Code specifies the matters which would be appealable and no other and the appeals from orders are provided for in Order XXXXIII Rule 1 of the Code which contain a full list of appealable orders. However, it does not contemplate orders or decrees passed under a special statute. Section 299 of the Indian Succession Act, 1925 provides for appeals from the orders of District Judge before the High Court in accordance with the provisions of the Code. A final order passed in respect of proceedings under the said Act were, thus, held to be judgment within the meaning of Section 2(9) of the Code. Sub-section (2) of Section 104 of the Code provides that no appeal shall lie from any other passed in appeal under that Section. It was, thus, held that if the appeal is provided under any other law, Section 104 of the Code would have no application. It was thus, held that the orders passed by learned Single Judge was appealable to the Letters Patent Bench." "14.
It was, thus, held that if the appeal is provided under any other law, Section 104 of the Code would have no application. It was thus, held that the orders passed by learned Single Judge was appealable to the Letters Patent Bench." "14. The important fact to note is that the controversy arose in respect of the judgment of learned single Judge of the High Court in respect of the proceedings filed under Section 299 of the said Act. It is against that order that a Letters Patent Appeal was held to be maintainable. The position, in the present case, is not the same. The probate petition was filed before the trial court and learned single Judge was hearing the first appeal and not an original petition filed under the said Act." "18. In view of the aforesaid legal position, we are of the considered view that in view of the amendment to the provision of Section 100A of the Code, no Letters Patent Appeal would now be maintainable from the orders passed by learned Single Judge in first appeal being an appealable order, which in turn arose out of the proceedings initiated under Section 299 of the said Act. WE have, thus, no option, but to dismiss the appeal as not maintainable." ( 21. ) THE position of law appears to be abundantly clear. We need to address ourselves on one small issue. In the present appeal two orders are challenged. First order is the order passed by learned Single Judge in CA No. 4706 of 2011 preferred under Order 22, Rule 4A of the CPC as well as under Order 22 Rule 10 of CPC. THE second order is an order passed in the main appeal declaring the appeal as having stood abated on the demise of the original appellant late Ramsarandasji. If Letters Patent Appeal would not be maintainable against the judgment and order passed by learned Single Judge in First Appeal preferred under Section 299 of the Succession Act, then in our opinion, Letters Patent Appeal would not be maintainable even against an inter-locutory or an intermediate order passed in the said first appeal like the order passed by learned Single Judge rejecting the CA preferred under the provisions of Order 22 Rule 4A and Order 22 Rule 10 of CPC. Most importantly, Division Bench in Bikhabhai Kalyanbhai Vs.
Most importantly, Division Bench in Bikhabhai Kalyanbhai Vs. Pirabhai Vaghabhai (supra) in paragraphs 9, 10 and 11 has observed that where the view taken is that no Letters Patent Appeal is entertainable in respect of the final order, then there cannot be any Letters Patent Appeal with regard to some interlocutory orders passed in respect of appellate jurisdiction i.e. in any pending appeal. We quote below paragraphs 9, 10 and 11:- "9. THE decision rendered in the case of Abraham Mathews v. Illani Pillai reported in AIR 1981 Kerala 129 by the Full Bench has also evolved the same principles as laid down in the case of P. R. Reddy v. Sambasivarao reported in AIR 1978 AP 97 ." "10. A Bench of this High Court, consisting of myself and my learned Brother dealing with a Letters Patent Appeal which rose out of a Miscellaneous Civil Application filed in Civil Revision Application came to the conclusion that the said M.C.A. is in nature of a review petition and that the facts in the M.C.A. would not justify that it is an independent application de hors the proceedings in C.R.A. No. 1223 of 1984. With that observation we hold that the Letters Patent Appeal is not maintainable. We further hold that the argument of the learned Counsel in that petition, if accepted on the facts and circumstances of the case, will lead to dangerous consequences and that anyone aggrived by any interim direction passed in a Civil Revision Application may as well file on M.C.A. of that nature and will invoke the jurisdiction of the High Court under Clause 15 of the Letters Patent. It was further held and observed as follows: When it is very clear that no Letters Patent Appeal is entertainable in respect of the final order in a C.R.A., a fortiori there cannot be any Letters Patent Appeal either with regard to some interlocutory orders or directions given in the said C.R.A. or in respect of orders passed in a petition which is in the nature of a review petition for the purpose of reviewing the orders passed in such C.R.A." "11. As far as the present case is concerned Civil Application was filed in the pending Second Appeal for the relief which we have already extracted in paragraph supra.
As far as the present case is concerned Civil Application was filed in the pending Second Appeal for the relief which we have already extracted in paragraph supra. Aggrieved by the order passed in that Civil Application filed in the Second Appeal the appellant herein wants this Letters Patent Appeal to be admitted. THE facts and the principles decided in the Letters Patent Appeal No. 254 of 1986 given by us as early as 2nd September, 1986 will apply in all force to the facts of this case also." ( 22. ) IN the above view of the matter, we hold that the present Letters Patent Appeal under Clause 15 is not maintainable and the same is hereby dismissed with no order as to costs. Civil Application stands disposed of.