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2013 DIGILAW 109 (CAL)

Sabyasachi Chatterjee v. Prasad Chatterjee

2013-02-22

ARUN MISHRA, JOYMALYA BAGCHI, SANJIB BANERJEE

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JUDGMENT Sanjib Banerjee, J. 1. The primary similarity in these two references is in their posing the identical ultimate question: whether a petition under Article 227 of the Constitution of India ought to be entertained in either case. Before any discussion even on the circumstances in which these references came to be made, some ground rules need to be established by the reiteration of a few axiomatic principles. To begin with, every High Court exercises plenary powers of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This overwhelming prerogative--not necessarily to merely correct orders but to keep the subordinate fora within the bounds of their authority--is subject to a self-imposed restraint exercised by the High Courts in ordinarily not entertaining any matter for judicial review under Article 227 of the Constitution of India if there is an efficacious alternative remedy available to the person seeking to invoke the jurisdiction. It is fundamental that the existence of an efficacious alternative remedy does not make a petition otherwise amenable under Article 227 of the Constitution to be not maintainable; it is just that the High Court will not allow this extraordinary jurisdiction to be invoked if it recognises that there is another effective mode of redressing the perceived wrong complained of. Secondly, the right of appeal is a substantive right which is only created by a statute and such right does not inhere in any person. Unlike under Section 9 of the Code of Civil Procedure, 1908 which has room enough to accommodate all civil complaints by way of a suit unless expressly prohibited by law or barred by inescapable necessary implication, there is no implied right of appeal unless it is expressly conferred. Thirdly, if there is a specific provision in any law for a particular purpose, the general or residuary provision in the same body of law or elsewhere cannot be invoked for the same purpose. Finally, notwithstanding how a petition is intituled, or its nomenclature, and despite an erroneous reference to the source of authority in any petition or an order thereon, it is only the nature of the petition and the character of the order that have a telling impact on the purport thereof, particularly in determining whether the order is amenable to an appeal. 2. 2. CO No. 1862 of 2011 is a petition under Article 227 of the Constitution arising out of an interlocutory order passed in course of an appeal from a preliminary decree in a partition suit. The authority of the appellate Court to make an interlocutory order of injunction was invoked by referring to Order XXXIX Rules 1 and 2 of the Code read with Section 151 thereof. Upon the petition under Article 227 of the Constitution being received on July 14, 2011, the Single Bench noticed that there were two recent Division Bench decisions of this Court reported at (2007) 3 Cal HN 166 (Jamuna Chakraborty v. Sital Chakraborty) and at (2011) 2 Cal LT (HC) 144: (2011) 2 WBLR (Cal) 434 (Shrimati Mamata Guha v. Pranab Kumar Das), which held that in similar situations no appeal would be available from an interlocutory order of injunction passed by an appellate Court. It was also observed that a contrary view was taken in two other Division Bench judgments reported at (2004) 1 Cal HN 1 (Sushil Kumar De v. Chhaya De) and at AIR 2007 Cal 154 (Raj Kumar Rowla v. Manabendra Banerjee). The question formulated for the reference is as follows: Whether, having regard to the facts and circumstances involved in this revisional application, an appeal is maintainable against the impugned order under Order 43 Rule 1(r) of the Civil Procedure Code or not?" 3. In CO No. 2310 of 2011, in proceedings under Sections 73 and 74 of the Indian Trusts Act, 1882, an interlocutory application invoking Order XXXIX Rules 1 and 2 read with Section 151 of the Code was filed. From the order on such application, a petition under Article 227 of the Constitution has been carried to this Court. Upon such petition being taken up, the reference made in CO No. 1862 of 2011 was noticed and it was observed that, The question as to whether a revisional application would be maintainable against an order of injunction passed in a misc. case is unsettled in view of conflicting opinions expressed by two sets of Division Bench decisions of this Court. ... Having regard to the similarity of issue involved herein i.e. whether this revisional application is maintainable or not, this application may also be placed for consideration... 4. It is imperative, at the outset, that the relevant provisions of the Code be noticed. ... Having regard to the similarity of issue involved herein i.e. whether this revisional application is maintainable or not, this application may also be placed for consideration... 4. It is imperative, at the outset, that the relevant provisions of the Code be noticed. Part VII of the body of the Code deals with appeals and is divided into five segments covering appeals from original decrees; appeals from appellate decrees; appeals from orders; general provisions relating to appeals; and, appeals to the Supreme Court. Of the 17 Sections that now figure in Part VII of the body of the Code, Sections 104, 105, 107 and 108 are of some relevance in the context of both these matters, as is Section 141 thereof which figures in Part XI of the Code covering miscellaneous provisions: 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:-- (ff) 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 (ft) 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. 105. (2) No appeal shall lie from any order passed in appeal under this section. 105. Other orders.--(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." 107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power - (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. 108. Procedure in appeals from appellate decrees and others.--The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals - (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided. 141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Explanation.--In this Section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. 5. The first reference may be answered rather simply by discovering that none of the provisions in the body of the Code, or anything in the rules appended thereto, permits an appeal from an interlocutory order passed in an appeal from a decree. 5. The first reference may be answered rather simply by discovering that none of the provisions in the body of the Code, or anything in the rules appended thereto, permits an appeal from an interlocutory order passed in an appeal from a decree. The answer is no more difficult to make because of the absence in Section 96 of the Code (which provides for appeals from original decrees) of a provision similar to Section 104(2) of the Code, particularly since the prohibition under Section 105(1) thereof applies to all orders not specifically covered by Section 104(2) of the Code; and an interlocutory order in an appeal from a decree, by virtue of Section 105(1) of the Code, cannot be carried in appeal unless it is expressly provided for. In the context of the present discussion, the unavoidable implication of Section 105(1) of the Code is that only such orders passed in an appeal from a decree would be amenable to appeal as have been expressly provided for; or, if there is no express provision for an appeal from a certain order, there is no right of appeal. 6. The more comprehensive answer to the question lies in the general provisions relating to appeals as recognised in Sections 107 and 108 of the Code. In the absence of Sections 107 and 108 of the Code, an appellate Court would apparently have had no express authority to entertain a substantive application for injunction or the like except to the extent permitted by the rules or in exercise of its inherent jurisdiction. But Section 107(2) of the Code gives every appellate Court the same powers and the obligation to perform the same duties "as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein." However, Section 107(2) is of limited import and does not expressly cover appeals from appellate decrees or appeals from orders made under the Code or appeals under any special or local law of civil nature. It is only Section 108 of the Code that extends the authority and the obligation of the appellate Court in, inter alia, Section 107(2) thereof to appeals from appellate decrees; to appeals from orders made under the Code; and, to appeals under any special or local law in which a different procedure is not provided. It is only Section 108 of the Code that extends the authority and the obligation of the appellate Court in, inter alia, Section 107(2) thereof to appeals from appellate decrees; to appeals from orders made under the Code; and, to appeals under any special or local law in which a different procedure is not provided. The authority of an appellate Court to exercise the same powers as are conferred by the Code, and the obligation of the appellate Court to perform as nearly as may be the same duties as are imposed by the Code, on Courts of original jurisdiction may not be as wide in scope in an appeal from an interlocutory or interim order as in an appeal from a decree. Such authority and obligation, which would cover the entire ambit of the relevant suit in an appeal from a decree, would necessarily be restricted to the scope of the interlocutory petition on which the interim order under appeal was passed in an appeal from an order made under the Code. 7. In an appeal from a decree, as in CO No. 1862 of 2011, Section 107(2) of the Code confers the same powers and imposes the same duties on the appellate Court as conferred and imposed by the Code on the Court of original jurisdiction in respect of the suit. It is the substantive provision of Section 107(2) of the Code that permits an appellate Court to entertain an interlocutory petition in course of the appeal. Such interlocutory petition may be for an order in the nature of attachment before judgment or an order of injunction or an order for the appointment of a receiver or like orders, whether under any precise provision therefor or under the inherent jurisdiction as saved by Section 151 of the Code as available to the Court of original jurisdiction. It is, therefore, plain to see that an appellate Court does not exercise the professed authority under Order XXXVIII or Order XXXIX or Order XL or like provisions of the Code to pass any interlocutory order but, by virtue of Section 107(2) of the Code, read in the appropriate case with Section 108 thereof, the appellate Court exercises the authority or discharges the obligation akin to the direct authority conferred or obligation imposed by the Code on the Court of original jurisdiction. In each case, however, the scope of the authority conferred or the obligation imposed bears a direct nexus with the scope of the authority available or the duties required to be discharged by the Court of the first instance. The authority and obligation of the appellate Court are also directly relatable to the nature of the proceedings -- including the scope thereof --which resulted in the decree or the order under appeal. 8. This marked distinction between the exercise of authority by a Court of original jurisdiction under Order XXXVIII or Order XXXIX or Order XL or like provisions of the Code and the authority exercised by an appellate Court by virtue of the permissive provision in Section 107(2) of the Code is the defining factor in determining whether an interlocutory appellate order made in exercise of the power under Section 107(2) of the Code is amenable to an appeal. Since the bar under Section 104(2) of the Code would not apply to any order passed in course of an appeal from a decree, Section 105(1) of the Code would come into play. The embargo under Section 105(1) of the Code is not as uncompromisingly absolute as in Section 104(2) thereof; it only prohibits appeals from all appellate orders for which there is no express provision of appeal. The appeals recognised under Order XLIII Rule 1 of the Code from orders passed by a Court of original jurisdiction cannot be understood to extend by implication to interlocutory appellate orders. Those appellate orders that are appellable are expressly provided for in Order XLIII Rule 1 itself. 9. As an indispensable corollary, once it is noticed that Section 107(2) of the Code, when read with Section 108 thereof, covers all appeals as recognised in the Code, the authority of the appellate Court to exercise the powers of the Court of original jurisdiction cannot be traced to the miscellaneous provisions as to other civil proceedings recognised in Section 141 of the Code. For a start, appeals are regarded as appeals in the Code and cannot be treated as miscellaneous proceedings. Undoubtedly, appellate proceedings cannot be viewed as proceedings of the first instance. Second, Section 141 of the Code extends the procedure provided in regard to suits, to the extent such procedure can be made applicable, to all proceedings in any Court of civil jurisdiction. Undoubtedly, appellate proceedings cannot be viewed as proceedings of the first instance. Second, Section 141 of the Code extends the procedure provided in regard to suits, to the extent such procedure can be made applicable, to all proceedings in any Court of civil jurisdiction. The expression "all proceedings" in Section 141 of the Code has necessarily to be seen as all proceedings of civil nature to which the Code does not apply in terms and to which the procedure prescribed for suits by the Code would not have applied but for Section 141 thereof. Since the procedure in the conduct of appeals and the substantive rights conferred on an appellate Court are expressly contained in the Code itself, the specific provisions -- whether substantive or procedural -- in the Code governing appeals which arise under the Code will guide the conduct and the course of appeals under the Code and not the residuary provision in Section 141 thereof that makes the procedure under the Code applicable to other proceedings of civil nature. 10. Oddly, the rival parties to CO No. 1862 of 2011 appear to espouse the same cause and suggest that an appeal would lie from an interlocutory order of injunction passed in course of an appeal from a decree. The petitioner explains that the petition under Article 227 of the Constitution has been carried only in deference to the opinion echoed in the recent Division Bench verdicts of this Court that an appeal from an order in the nature of the order impugned in such petition would not be maintainable. Several judgments of other High Courts have been cited which require to be noticed. The apparent conflict between the two lines of thought reflected in the two sets of Division Bench judgments of this Court may also need to be resolved. 11. The petitioner in CO No. 1862 of 2011 has relied first on a judgment reported at AIR 1982 AP 284 (K. Gangulappa Naidu v. K. Gangi Naidu). A revision under Section 115 of the Code, as it was then, was filed against an order granting a temporary injunction in an appeal from a decree dismissing a suit. The question that arose was whether an appeal would lie against the order or only a revision under the then Section 115 of the Code would be maintainable. A revision under Section 115 of the Code, as it was then, was filed against an order granting a temporary injunction in an appeal from a decree dismissing a suit. The question that arose was whether an appeal would lie against the order or only a revision under the then Section 115 of the Code would be maintainable. The Andhra Pradesh High Court noticed the judgments reported at AIR 1964 Ker 23 (Chellappan v. K.P. Varughese), AIR 1975 Mad 3 (C. Kalahasti v. C.M. Chetti) and AIR 1976 Mad 63 (Ramaswamy Reddiar v. Chinna Sithammal and held as follows at paragraph 11 of the report: 11. In the instant case pending the appeal preferred against the disposal of the suit, an application under O.39, Rr. 1 and 2 is filed and that application is disposed of for the first time by the appellate Court. This is not a case where against the orders under O. 39, Rr. 1 and 2 made by the trial Court an appeal is preferred to the District Court and as against the orders of the District Court the matter is carried to this Court. So this does not come under the mischief of S. 104(2), C.P.C., but squarely falls under O.43, R. 1(r). Accordingly, an appeal shall lie under O.43, R. 1(r) r/w S. 104(1), C.P.C. The authorities cited, as already noted, are distinguishable since the interlocutory proceedings there started from trial Court, then to the appellate Court and thereafter to the High Court attracting S. 104(2), C.P.C. Those High Courts are right in holding that no such appeal in those circumstances could be maintained. The case on hand is altogether different in nature and does not attract S. 104(2). Therefore, an appeal does lie and is maintainable in the instant case. 12. Since the opinion in K. Gangulappa Naidu was based on a Madras judgment and distinguished an earlier Madras and a Kerala view, such judgments need also to be considered. In C. Kalahasti an appeal was sought to be preferred to the High Court from an interlocutory order of injunction in an appeal arising out of an order dismissing an injunction application in a suit. The Madras High Court referred to Section 105 of the Code that mandates that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in exercise of its original or appellate jurisdiction. The Madras High Court referred to Section 105 of the Code that mandates that unless otherwise expressly provided, no appeal shall lie from an order made by a Court in exercise of its original or appellate jurisdiction. The Court then referred to Section 104(2) of the Code which expressly prohibits any appeal from any order passed in an appeal from an order; and held that the appeal from the interlocutory injunction passed in course of the appeal arising out of the dismissal of an injunction application in the suit was not maintainable. In Chellappan, the Kerala High Court held that the power given to an appellate Court under Section 107 of the Code is only part of its appellate jurisdiction; that it cannot be characterised as an original jurisdiction in an appellate Court; and, an interlocutory order of injunction passed in course of an appeal from an order cannot be subjected to an appeal. Again, Section 104(2) of the Code was seen to be the express prohibition and no provision conferring the right of such appeal was found to be contained in the Code. In the subsequent Madras decision in Ramaswamy Reddiar, the Court considered the maintainability of an appeal from an order of dismissal for default of an application to readmit an appeal from a decree. The Court distinguished the dictum in C. Kalahasti by noticing that Section 104 had no manner of application in an appeal from a decree and, accordingly, since there was no corresponding bar in Section 96 of the Code as the one contained in Section 104(2) thereof, the appeal was maintainable under Order XLIII Rule 1(t) of the Code. With respect, in K. Gangulappa Naidu, the Court based its view on the Madras decision in Ramaswamy Reddiar without appreciating that the bar under Section 105(1) of the Code did not apply in Ramaswamy Reddiar since there was an express provision for preferring an appeal in Order XLIII Rule 1(t) of the Code. The order impugned in K. Gangulappa Naidu was not covered by any express appellate provision; and the exception to the bar under Section 105(1) of the Code was not attracted in such case. 13. The views expressed in C. Kalahasti, Chellappan and Ramaswamy Reddiar are all unexceptionable; there is no conflict between them and ail can coexist. The order impugned in K. Gangulappa Naidu was not covered by any express appellate provision; and the exception to the bar under Section 105(1) of the Code was not attracted in such case. 13. The views expressed in C. Kalahasti, Chellappan and Ramaswamy Reddiar are all unexceptionable; there is no conflict between them and ail can coexist. C. Kalahasti and Chellappan both dealt with would be appeals from interlocutory orders of injunction passed in course of appeals from orders. Since Section 104(2) of the Act expressly prohibits an appeal "from any order passed in appeal under this section" there was no need to look for any provision elsewhere for the purpose. It was an entirely different aspect that fell for consideration in Ramaswamy Reddiar and the reasoning in Ramaswamy Reddiar must be appreciated at a more fundamental level. The prohibition under Section 104(2) of the Code is absolute and there is no corresponding prohibition in Section 96 of the Code covering appeals from decrees. The reason for the distinction is that the rules appended to the Code provide for appeals arising out of certain orders passed in an appeal from a decree as in clauses (s), (t) and (u) of Order XLIII Rule 1 of the Code. Further, a second appeal is possible from an appeal from a decree as recognised in Section 100 of the Code itself. Jurisprudentially, an appeal from a decree, which involves the culmination of a lis (or the culmination of a part of a lis in a preliminary decree) in the Court of first instance, is treated on a different footing than an appeal from an order. 14. But, the view expressed in K. Gangulappa cannot be accepted since the Andhra Pradesh High Court traced the source of the authority of an appellate Court to make an interlocutory order of injunction in an appeal from a decree directly to Order XXXIX of the Code without appreciating that the source of that authority was only under Section 107(2) thereof. But, the view expressed in K. Gangulappa cannot be accepted since the Andhra Pradesh High Court traced the source of the authority of an appellate Court to make an interlocutory order of injunction in an appeal from a decree directly to Order XXXIX of the Code without appreciating that the source of that authority was only under Section 107(2) thereof. It is this distinction which is of utmost importance: that though an appellate Court, in exercise of the authority under Section 107(2) of the Act -- read with Section 108 thereof in appropriate cases -- can make an order of injunction or the like, and rely on the authority of the Court of original jurisdiction under Order XXXIX or the like of the Code for such purpose, the interlocutory order of injunction passed by the appellate Court is only under Section 107(2) -- read with Section 108, in appropriate cases -- of the Code and not under Order XXXIX or the like of the Code. In the pyramidical structure of the hierarchy of Courts in this country; the opportunities of judicial review by way of appeals against judicial pronouncements of Courts of original jurisdiction are more than the opportunities of judicial review by way of appeals against judicial pronouncements of appellate Courts. It must be understood on a meaningful reading of the Code that the opportunities of correction by way of an appeal are restricted as the judicial pronouncements are made by Courts away from the base of the pyramid, Further, if no regular appeal lies from a final judicial pronouncement concluding the lis before a particular judicial forum, it would defy logic that an appeal would lie from an interlocutory order in course of the proceedings at the same stage. 15. Apart from the Division Bench judgment of this Court in Raj Kumar Rowla, the petitioner in CO No. 1862 of 2011 has placed the following judgments of other Courts: (2004) 1 KLT 523 (Ganesan v. Sadasivan); (1986) MhLJ 865 (Krushna Pandurang Wankhede v. Sitaram Punjali Wankhede); (2004) 4 ALD 176 (Mohammed Ikramul Quadir v. Mohammed Amaanul Quadir); (2008) 3 ALD 6 (Maddela Lazar v. Kopreddy Venkata Subba Reddy); (1998) 8 SCC 222 (The State of Punjab v. Bakshish Singh); and, Kant 198 (Sunita Chemicals Pvt. Limited v. Canara Bank). In the Kerala decision of Ganesan, the Court regarded an interlocutory order passed in an appeal from a decree as one passed under Order XXXIX Rules 1 and 2 of the Code and reasoned that such order was appellable under Order XLIII Rule 1(r) thereof. As in the case of K. Gangulappa Naidu, the judgment in Ganesan failed to recognise that the interlocutory order passed by the appellate Court was one under Section 107(2) of the Code and, in view of the opening limb of Section 105(1) of the Code, no appeal would lie from the order since there was no express provision therefor. The source of authority of the order was Section 107(2) of the Code and not Order XXXIX thereof as it is only by dint of Section 107(2) of the Code that an appellate Court can exercise the authority of the Court of original jurisdiction in an appeal from a decree. In the Bombay High Court judgment of Krushna Pandurang Wankhede, the order impugned was a temporary injunction granted by the appellate Court in course of an appeal from a decree and the reasoning therein is founded on K. Gangulappa Naidu. For the reasons already indicated, the Bombay view does not appeal. The subsequent Andhra Pradesh judgments in Mohammed Ikramul Quadir and Maddela Lazar, which followed the dictum in K. Gangulappa Naidu, do not appear to be good law. The Supreme Court decision in Bakshish Singh is of no relevance in the present context as it only discussed the authority of an appellate Court under Section 107(1) of the Code and under Order XLI Rule 33 thereof. The Karnataka judgment in Sunita Chemicals held that the provisions of Order IX of the Code did not apply to petitions filed under Order XXXIII thereof and, apart from the observation that when a specific provision exists for a purpose the general provision under Section 141 of the Code cannot be applied, is completely inapposite in this discussion and throws no light on the issues which arise herein. 16. Before referring to the two sets of Division Bench judgments of this Court that have resulted in these references, the submission of the parties in the second reference may be noticed. 16. Before referring to the two sets of Division Bench judgments of this Court that have resulted in these references, the submission of the parties in the second reference may be noticed. The petitioner says that in view of Section 141 of the Code it is only the procedural part of the Code which is extended to other civil proceedings not covered by the Code. It is asserted that the Code contains both substantive and procedural provisions and, though it may not be possible to suggest that the body of the Code contains the substantive provisions and the Orders appended to the Code contain only procedural matters, there can be no doubt that the substantive provisions under the Code are not extended to miscellaneous proceedings or other civil proceedings where the Code does not apply in terms. The petitioner in the second reference criticises, in particular, the judgment in Raj Kumar Rowla and says that not only does no substantive provision of the Code cover miscellaneous proceedings or other civil proceedings not governed by the Code, but Courts in seisin of miscellaneous proceedings or other civil proceedings not governed by the Code derive their authority to pass appropriate orders, including the grant of interlocutory reliefs, by virtue of the inherent powers that they possess as Courts. This petitioner insists that it would be fallacious to regard an order of interlocutory injunction passed in any miscellaneous proceedings or other civil proceedings not governed by the Code to be passed under Order XXXIX of the Code, since the substantive provisions of Order XXXIX of the Code do not apply in terms to miscellaneous proceedings or other civil proceedings not governed by the Code. As a consequence, it is submitted that an order passed in any miscellaneous proceedings or other civil proceedings not governed by the Code cannot be regarded as an order under the substantive provisions of the Code despite the authority akin to the substantive provisions having been exercised to make the order. Such petitioner suggests that the power of a Court to invoke the authority akin to the authority in the substantive provisions of the Code may be attributed to Section 151 of the Code. 17. Such petitioner suggests that the power of a Court to invoke the authority akin to the authority in the substantive provisions of the Code may be attributed to Section 151 of the Code. 17. The petitioner in the second reference relies on the judgment reported at (1965) 3 SCR 201 (Nawab Usmanali Khan v. Sagarmal) for the proposition that the substantive provisions of the Code do not apply to other civil proceedings not governed by the Code. In that case, the bar under Section 86 of the Code was held to not prohibit the institution of any other civil proceedings which were not in the nature of a suit. As to the distinction between substantive law and procedural law, the petitioner cites Salmond on Jurisprudence (12th Ed) for the illuminating discussion reflected in the following passages at paragraph 128 thereof: What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions -- jus quod ad actiones pertinent -- using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of Courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated." Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance. 18. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance. 18. The judgments reported at (1953) SCR 987 [Hoosein Kasam Dada (India) Limited v. The State of Madhya Pradesh], (1957) SCR 488 (Garikapati Veeraya v. N. Subbiah Choudhury) and (1999) 4 SCC 423 (Superintending Engineer v. B. Subha Reddy) have been brought for the judicial recognition of the principle that the right of appeal is a creature of statute and has to be discovered in the statute and not deduced by implication. The petitioner suggests that the ratio decidendi in Raj Kumar Rowla--that a right of appeal under Order XLIII Rule 1(r) of the Code is a procedural right which has been extended to miscellaneous proceedings or other civil proceedings not governed by the Code -- is per incurium as it failed to appreciate the Supreme Court dicta in the above cases and overlooked the cardinal principle that the right of appeal is a substantive right that needs to be conferred by some statute. The petitioner in the second reference commends the view taken in Jamuna Chakraborty and Mamata Guha to this Bench. The petitioner also suggests that the referring judgment reported at (2004) 1 Cal LT (HC) 197 (Sushil Kumar De v. Smt. Chhaya De) is the more correct appreciation of the law than how the reference was answered by the Division Bench of this Court. A further judgment reported at AIR 1988 Cal 358 (Nurnahar Bewa v. Rabindra Nath Dev) has also been cited for the opinion expressed therein by a Full Bench on an unrelated aspect of Section 141 of the Code. 19. On the principal questions that have arisen here, the judgments of this Court which have a bearing on such aspect need finally to be seen. In the case of Nurnahar Bewa, a Full Bench of this Court observed that though the rules appended to the Code detail the machinery for implementing the various provisions of the Code and basically regulate procedural matters, but several parts of the rules appended to the Code lay down substantive law. But the questions posed to the Full Bench in that case are not germane to the issues that have arisen here. But the questions posed to the Full Bench in that case are not germane to the issues that have arisen here. The first of the judgments of this Court in chronological order which is relevant to the questions that arise now is the referring judgment in Sushil Kumar De. A suit was dismissed for default and an application for recalling the order of dismissal was also dismissed for the non-appearance of the plaintiff. A further application was made for recalling the order dismissing the restoration application. Such application was rejected. The order of rejection was sought to be revised before this Court under Section 115 of the Code. The question as to whether an appeal would lie from an order rejecting an application for restoration of an application for setting aside an ex parte order of dismissal of the suit was referred to a Division Bench in the light of a contrary view by a previous Single Bench, but only after rendering the following opinion at paragraph 15 of the report: 15. Hence, this application cannot be termed as an application to fit in that language of Order 43 rule 1 sub-rule (c), as this application was never an application praying for an order to set aside the dismissal of a suit but the same was an application praying for restoration of earlier application 3.10.2001, wherein, prayer was made to set aside the ex parte order of dismissal of the suit and which suffered order of dismissal for default. 20. The Division Bench answered the reference by construing the word "procedure" in Section 141 of the Code to imply that both the substantive provisions and the procedural aspects of the Code stood extended thereby to miscellaneous proceedings or other civil proceedings not governed in terms by the Code. The reasoning in support of such view is evident from paragraph 12 to 18 of the report: 12. It is incorrect, in our opinion, to construe this phrase in a limited way and give the word procedure, occurring there; a limited meaning. It is incorrect to construe that word only to mean the so-called procedural part of the Code of Civil Procedure, and hold that only that part is made applicable to the other proceedings, but not the substantive part of the Code. The Code itself is a Code of Civil Procedure. It is incorrect to construe that word only to mean the so-called procedural part of the Code of Civil Procedure, and hold that only that part is made applicable to the other proceedings, but not the substantive part of the Code. The Code itself is a Code of Civil Procedure. It contains matters of substantive right which are not matters of mere procedure, as ordinarily understood. But the "procedure provided in this Code" is a phrase which refers to the entirety to the Code and not merely to a part of it. 13. If it were the case, that Section 141 makes only the 'mere' procedure of the Code applicable to proceedings other than suits, and the right to appeal being a substantive right, Section 141 cannot, by its language, confer such a right, then the grant of Probate would also not be appealable. But clearly it is appealable. Thus, Section 141 also ropes in the provisions of appealability. 14. On this interpretation a restoration application, being a proceeding under Section 141 is to be itself restored, if dismissed for default, by another application under Order 9 Rule 9. 15. Similarly under Order 43 Rule 1 sub-rule (c) the second application under Order 9 Rule 9, on dismissal, will become appealable; the word suit is then to be read, by reason of Section 141, as meaning the first application made under Order 9 Rule 9. 16. The bracketed phrase "(in a case open to an appeal)" occurring in the sub-section means that, the case which is attempted to be restored, would itself give rise to an appealable order or decree if it were head and decided. 17. When the appealability of an order made on an Order 9 Rule 9 application for restoring a suit, is under consideration, it means that the suit, if decreed, would have produced an appealable decree; if a restoration application of a restoration application is dismissed and appealed from, then it means that the first restoration application itself relating to the suit, if dismissed, would have given rise to an Order which is open to appeal. 18. On this construction an Order rejecting restoration of a restoration application is appealable on a combined reading of the aforesaid sections of the Code of Civil Procedure. 21. The next in point of time is the judgment in Raj Kumar Rowla. 18. On this construction an Order rejecting restoration of a restoration application is appealable on a combined reading of the aforesaid sections of the Code of Civil Procedure. 21. The next in point of time is the judgment in Raj Kumar Rowla. A suit challenging a consent decree was dismissed for default. An application for restoration of the suit was filed by way of a miscellaneous case and an application was filed in the miscellaneous case, invoking the provisions of Order XXXIX Rules 1 and 2 read with Section 151 of the Code. The order on the injunction application was carried in appeal before this Court and an objection was taken that such appeal was not maintainable. It was argued on behalf of the respondents in that case that though Section 141 of the Code applied to the miscellaneous case, the substantive provisions of the Code did not apply in terms thereto and, consequently, there was no right of appeal from any order passed in the nature of injunction in the miscellaneous case. The Division Bench noticed the previous Division Bench judgment in Sushil Kumar De, and, in upholding the right of appeal, observed as follows at paragraphs 23 and 24 of the report: 23. The provisions of Order 43 in our view in its basic sense is a substantive part namely the right of appeal in general but because of its own nature one cannot say that it is a substantive portion in its entirety. Sometimes substantive right is also used in the matter of procedure. It is settled position of law that the appeal is a continuation of a particular original proceeding. Undisputedly the provisions of Order 39 is an incidental and/or interlocutory proceeding and such proceeding has got effect of continuity leading to appeal. Order passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure has been made appealable and it is provided though separately, in order XLIII but essentially has to be read as being incorporated in Order 39 itself. In other words, provision of Order 43, Rule 1(r) has to be treated as part of Order 39 and consequently has to be treated as procedural part of the Code. We therefore conclude that some times substantive right pertakes the character of the procedural right and vice versa in the Court. In other words, provision of Order 43, Rule 1(r) has to be treated as part of Order 39 and consequently has to be treated as procedural part of the Code. We therefore conclude that some times substantive right pertakes the character of the procedural right and vice versa in the Court. There are other provisions, which in form is a procedural part but in substance it is a substantive portion of the Code. Namely the provision of res judicata though in form is a procedural part but it becomes a substantive portion of the Code when the same is taken in the defence and Court has to recognize and accept and decide the question of res judicata. Similarly, the provisions of Sections 80, 86 and 87(B) are though in form is a procedural part, these are essentially a substantive part of the Code. 24. That apart "Procedure provided in this Code" as used in Section 141 of the Code denotes that there is no right of appeal from an order passed in a "proceeding" contemplated by this section unless statutes governing such proceedings provides for appeal. So, since there is a right of appeal against an order under Order 39, Rr. 1 and 2 as specifically provided in O. XLIII, R. 1(r), appeal is not barred. Reference may be made in this context to the cases of Hara v. Murari reported in AIR 1922 Cal 572, Habibar v. Saidunnessa, reported in AIR 1924 Cal 327 and Birendra v. Monorama, reported in AIR 1948 Cal 77. 22. In the contemporaneous Division Bench judgment in Jamuna Chakraborty, the order sought to be assailed by way of an appeal in this Court was by an unsuccessful applicant who had sought an injunction in an appeal from a decree. The Division Bench held that the first miscellaneous appeal was not maintainable for the reasons evident in paragraphs 6 to 10 of the report by referring, inter alia, to Section 141 of the Code: 6. The Supreme Court in the case of Ram Chandra v. State of U.P., reported in AIR 1966 SC 1888 at page 1891 observed that the word "proceeding" appearing in Section 141 of the Code is not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc. 7. The Supreme Court in the case of Ram Chandra v. State of U.P., reported in AIR 1966 SC 1888 at page 1891 observed that the word "proceeding" appearing in Section 141 of the Code is not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc. 7. Therefore, after the deletion of the word "appeals" and the aforesaid observation of the Apex Court, there cannot be any doubt that by taking aid of Section 141 of the Code, the provisions contained in Order 39 Rules 1 and 2 which primarily relate only to suits can be made applicable to an appeal preferred against a decree passed by the trial Court. 8. Now the question arises whether an appeal will lie against any order passed on such an application under Order 39 Rules 1 and 2 Code filed before the Appellate Court. 9. It is now settled law that by taking support of Section 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of Section 141 of the Code (See Osmani Khan v. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801 (paragraph 7). 10. Therefore, although the provisions contained in Order 39 Rules 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under Section 104 of the Code is not available to an aggrieved person by taking help of Section 141 of the Code [See in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa v. Rabindra Nath Deb, reported in 1988 (1) Cal HN 461]. 23. The fourth judgment noticed in the first order of reference, and the most recent in point of time, is that of Mamata Guha. The appeal carried before a Division Bench of this Court in that case was from an order rejecting an injunction application in course of an appeal from a decree. The Division Bench referred to Section 647 of the Code of Civil Procedure, 1882 and the divergence of opinion on whether the expression "proceedings... other than suits and appeals" included proceedings in execution. The Division Bench referred to Section 647 of the Code of Civil Procedure, 1882 and the divergence of opinion on whether the expression "proceedings... other than suits and appeals" included proceedings in execution. The Allahabad and the Bombay High Courts held that the section applied to applications for execution of decrees, in the sense that the procedure relating to suits was extended thereby to applications in execution; but this Court was of the opinion [in a judgment reported at (1891) 1 ILR 18 Cal 635 (Bunko Behary Gangopadhya v. Nil Madhub Chattopadhya)] that the section did not apply to proceedings in execution. By an amending Act of 1892 an explanation was inserted at the foot of Section 647 of then Code that gave legislative sanction to the Calcutta view. The Division Bench referred to the Privy Council opinion reported at 22 IA 44 (Thakur Pushad v. Sheikh Fakir-ullah) rendered in 1894: that even without the explanation to Section 647, it was evident that the provision applied only to original matters in the nature of suits such as proceedings relating to probate, guardianship and the like. Eminent jurist Dinshah F. Mulla noted in his commentary on the then Code that if the Privy Council opinion had come three years earlier, it would not have been necessary to introduce the explanation to the section. The Division Bench discerned the use of the expression "in regard to suits" in Section 141 of the Code of Civil Procedure, 1908 in a departure from the words in Section 647 of the previous Code. The present Code, when enacted, did not carry the explanation that now figures in Section 141 thereof and such explanation was introduced by the amending Act of 1976. After tracing the history of the provision that now appears as Section 141 of the Code, the Division Bench expressed the following opinion at paragraphs 20 to 25 of the report: 20. Section 141 of the Code of Civil Procedure, therefore, extends the procedure provided in regard to suits to proceedings in civil Courts. It makes applicable to other proceedings only to those portions of the Code, which deal with procedure and those, which deal with substantive rights. This section deals with procedure and procedure alone. It does not confer substantive right not expressly granted by the Code. It makes applicable to other proceedings only to those portions of the Code, which deal with procedure and those, which deal with substantive rights. This section deals with procedure and procedure alone. It does not confer substantive right not expressly granted by the Code. Unless there is a right of appeal under the specific provisions of the statute, there is no right of appeal from an order passed in a proceeding contemplated by this section. The right of appeal is a substantive right and not a matter of procedure. No appeal, therefore, lies from an order passed in a proceeding of the kind contemplated under this section. Section 141 of the Code of Civil Procedure cannot operate to give an appeal from an order not otherwise appellable. Such right cannot be claimed on the strength of Section 141 of the Civil Procedure Code. 21. The Supreme Court of India in the case of Nawab Usmanali Khan v. Sagar Mal reported in (1965) 3 SCR 201 holds that Section 141 makes applicable to other proceedings only those provisions of the code which deal with procedure and not those which deal with substantive rights. 22. The Supreme Court of India in the case of Ram Chandra Aggarwal and another v. The State of Uttar Pradesh and another reported in (1966) Supp. SCR 393 holds that the expression "civil proceeding" in Section 141 of the Code of Civil Procedure is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies, also, to a proceeding which is not an original proceeding. 23. This is an appeal against the order, assuming for the sake of argument, rejecting an application for mandatory injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure by lower appellate Court. The applicants under Order 39, Rules 1 and 2 of the Code could be filed in the lower appellate Court only by resorting to Section 141 of the Code of Civil Procedure, which applies only to the procedural matters. 24. We respectfully concur with the view expressed in Jamuna Chakraborty v. Sital Chakraborty and others reported in 2007 (3) CHN 166 that an appeal may be treated as a continuation of the 'lis' between the parties, but never be treated as the continuation of the suit with in the scheme of the Code. 24. We respectfully concur with the view expressed in Jamuna Chakraborty v. Sital Chakraborty and others reported in 2007 (3) CHN 166 that an appeal may be treated as a continuation of the 'lis' between the parties, but never be treated as the continuation of the suit with in the scheme of the Code. It was never the legislative intention to treat the appeal as the continuation of the suit. 25. We, therefore, hold that this miscellaneous appeal is not maintainable. The appeal is, therefore, dismissed as not maintainable. 24. The first matter that requires attention is as to whether there is any conflict between the Division Bench judgments in Sushil Kumar be and Raj Kumar Rowla on the one hand and those in Jamuna Chakraborty and Mamata Guha on the other. As a corollary, it is also necessary to assess the correctness of the views expressed in the four decisions. It must be remembered that the ratio decidendi -- or, the reasons for the decision, as the classicists would have it -- in a judicial pronouncement, and its binding value as a precedent, is confined to the decision on the legal issue that arose on the facts before the Court; and not what can be implied or logically inferred therefrom. The Division Bench judgments in Sushil Kumar De and Raj Kumar Rowla were rendered on factual matrices which are not comparable to the circumstances in which the legal question arises in the first case before this Bench. In Sushil Kumar De an appeal was found to be maintainable from an order of dismissal for default of an application seeking the restoration of a suit that was dismissed for the non-appearance of the plaintiff. Without immediately going into the correctness of the view taken therein, the Sushil Kumar De dictum of the Division Bench is irrelevant in the context of CO No. 1862 of 2011, where the order impugned is the rejection of an interlocutory injunction in an appeal from a decree, albeit a preliminary decree. The Division Bench view in Sushil Kumar De was rendered in the context of Section 141 of the Code, the explanation whereof expressly refers to Order IX of the Code. But Section 141 of the Code has no manner of application to an order passed in an appeal covered by the Code. The Division Bench view in Sushil Kumar De was rendered in the context of Section 141 of the Code, the explanation whereof expressly refers to Order IX of the Code. But Section 141 of the Code has no manner of application to an order passed in an appeal covered by the Code. Similarly, the view in Raj Kumar Rowla was expressed in the backdrop of an appeal from an order in an interlocutory application in a miscellaneous case where the miscellaneous case was covered by the explanation to Section 141 of the Code. CO No. 1862 of 2011 had, therefore, to be guided by the dicta in Jamuna Chakraborty and Mamata Guha; both of which dealt with the interlocutory orders passed in appeals from decrees. However, the reasons disclosed in Jamuna Chakraborty and Mamata Guha need to be looked at. 25. Both Jamuna Chakraborty and Mamata Guha referred to Section 141 of the Code in assessing the maintainability of an appeal from an interlocutory order passed in an appeal from a decree. With utmost respect, the approach does not appear to have been mandated by the Code. In founding the basis for the conclusion in Jamuna Chakraborty on Section 141 of the Code, the Division Bench referred to a judgment reported at (1966) Supp. SCR 393 (Ram Chandra Aggarwal v. State of U.P.) and, relying on the Supreme Court dictum, observed that the word "proceedings" in Section 141 of the Code was "not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc." The Division Bench judgment then reasoned that by virtue of Section 141 of the Code, "the provisions contained in Order 39 Rule 1 and 2 which primarily relate only to suits can be made applicable to an appeal preferred against a decree passed by a trial Court." Such inference does not follow from the Supreme Court dictum in Ram Chandra Aggarwal where the question that arose was whether a reference made under Section 146(1) of the Code of Criminal Procedure to a civil Court could be transferred by the District Judge under Section 24 of the Code of Civil Procedure. The contention before the Supreme Court was that since the proceedings before the criminal Court arose under Section 145 of the Code of Criminal Procedure, any matter therein, including a reference to a civil Court under Section 146(1) of the Code of Criminal Procedure, should be regarded as criminal proceedings. The Supreme Court referred to a decision reported at (1965) 2 SCR 756 [South Asia industries (P) Limited v. S.B. Sarup Singh],, where it was held that when a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court, and observed that "there is no reason for restricting the expression "civil proceeding" only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits." It would not follow from such reasoning that the procedure governing an appeal arising under the Code -- and the substantive authority of the appellate Court regulated in the body of the Code -- have to be traced to Section 141 of the Code. The decision in Mamata Guha, to the extent that it draws sustenance from Ram Chandra Aggarwal and addresses the issue of appealability with reference to Section 141 of the Code, appears, equally, to be inapposite. 26. The invocation of the authority of the Court of original jurisdiction by an appellate Court, by virtue of Section 107(2) read with Section 108 of the Code, is recognised in the body of the Code itself; and when there is a specific provision for the purpose, the general or residuary provision in Section 141 of the Code would not be available for application. Section 105(1) of the Code prohibits an appeal from any order made by a Court in exercise of its original or appellate jurisdiction except as otherwise a expressly provided. Since there is no express provision for an appeal from an interlocutory appellate order upon the appellate Court exercising the power under Section 107(2) of the Code, whether or not read with Section 108 thereof, the order impugned in CO No. 1862 of 2011 is not an appellable order. This view does not detract from the conclusion arrived at in both Jamuna Chakraborty and Mamata Guha, but only alters the basis therefore. 27. This view does not detract from the conclusion arrived at in both Jamuna Chakraborty and Mamata Guha, but only alters the basis therefore. 27. There can be no doubt that the provisions in the Code did not apply in terms to the proceedings that threw up the orders impugned before this Court in Sushil Kumar De and Raj Kumar Rowla. It is also beyond question that the procedure under the Code applicable to suits stood extended to the proceedings in either case of Sushil Kumar De and Raj Kumar Rowla under Section 141 of the Code. However, Section 141 of the Code extends only the procedure under the Code applicable to suits to miscellaneous proceedings or other civil proceedings not governed in terms by the Code: it is the procedure and procedure alone that is covered by Section 141 of the Code and the substantive provisions of the Code are not extended thereby to miscellaneous proceedings or. other civil proceedings not governed in terms by the Code. That a right of appeal is a substantive right is beyond question. Such right cannot be seen to have been conferred by implication in Section 141 of the Code extending the procedure under the Code applicable to suits to miscellaneous proceedings and other civil proceedings not governed in terms by the Code. 28. In Raj Kumar Rowla, the Division Bench discovered a right of appeal from an interlocutory injunction in proceedings of civil nature to which Section 141 of the Code applies by referring to the judgments reported at AIR 1922 Cal 572 (Hara Kumar v. Murari Mohan); AIR 1924 Cal 327 (Habibar Rahaman v. Saidannessa Bibi) and AIR 1948 Cal 77 (Birendra Nath Biswas v. Monorama Devi]. Ironically, all the three judgments take the exact contrary view than the one expressed in Raj Kumar Rowla. In Hara Kumar, the petitioner before the High Court was the plaintiff in a suit for eviction. The suit was dismissed for default and the petitioner applied for setting aside the dismissal. The petitioner again failed to appear to prosecute the application which resulted in that too being dismissed for default. The petitioner applied to have the dismissal of the restoration application set aside, which was refused by the Court of the first instance. The petitioner sought to prefer an appeal from such order, but the appellate Court rejected it on the ground that no appeal lay. The petitioner applied to have the dismissal of the restoration application set aside, which was refused by the Court of the first instance. The petitioner sought to prefer an appeal from such order, but the appellate Court rejected it on the ground that no appeal lay. The petitioner then sought the lower appellate order to be revised. The Division Bench of this Court expressed the following view: In my opinion, the learned Subordinate Judge was quite right in the view which he took. Clause (c) of Rule 1 of Order XLIII allows an appeal from an order under Rule 9 of Order IX rejecting an application in a case open to appeal for an order to set aside the dismissal of a suit. The clause applies therefore only in cases where a "suit" has been dismissed. It is clear that while the order dismissing the petitioner's first application remained in force no fresh application could be made to set aside the dismissal of the suit. It is also clear that the suit came to an end with the order dismissing it for default and the first application, namely the application to set aside the dismissal of the suit was not itself a suit. It follows that the order dismissing the second application was not an order refusing to set aside dismissal of a suit within the meaning of Clause (c) of R. 1 of O. XLIII. 29. Similarly, in Habibar Rahaman an appeal was carried to this Court against an order in favour of two mutwallis of a wakf authorising them to grant a lease of the wakf property. The would be appellant was another mutwalli of the wakf. The Division Bench held that the order under appeal was not a decree and was not one expressly made appellable under the Code nor was it appellable under any other law. The judgment recognised that the proceedings in which the order was made may have been governed by Section 141 of the Code and concluded, ... The fact that the provisions of the Civil Procedure Code regulate the proceedings does not make the order which may be passed therein appealable... If, then, the proceeding is not a suit, the decision therein does not fall within the scope of a decree. The fact that the provisions of the Civil Procedure Code regulate the proceedings does not make the order which may be passed therein appealable... If, then, the proceeding is not a suit, the decision therein does not fall within the scope of a decree. It is an order -- an order which is not expressly made appealable by any provision in the Code of Civil Procedure or by any other statutory provision... 30. Again, in Birendra Nath, it was categorically held that the substantive right of appeal cannot be conferred by the extension of the procedure of the Code under Section 141 thereof to other civil proceedings. An application for pre-emption under the Bengal Tenancy Act, 1885 was dismissed for default. An application for setting aside the dismissal was dismissed on contest and the failed applicant appealed, but the appellate Court held that no appeal lay. Such appellate order was carried in revision to this Court. Paragraph 8 of the report is of particular significance; [8]. It is to be observed that S. 141 speaks of procedure. What is made applicable to all proceedings in a Court of civil jurisdiction is the procedure provided in the Code with regard to suits. Now', a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and therefore Courts have held that though O. 9, R. 9 is made applicable to applications other than suits no appeal would lie from a dismissal of such an application under O. 43, R. 1. 31. Not only is the view in Raj Kumar Rowla contrary to the fundamental principle that an appeal is a substantive right and has to be conferred by some statute, it is also evident that such view runs contrary to the three decisions which are expressly referred to at paragraph 24 of the report as being relevant in the context of the decision that an interlocutory order of injunction made in any miscellaneous proceedings is appellable under Order XLIII Rule 1(r) of the Code. The Division Bench in Sushil Kumar De did not notice Hara Kumar where a previous Division Bench had taken a contrary view in the same set of circumstances. The views expressed in the Division Bench judgment of Sushil Kumar De and Raj Kumar Rowla are unacceptable and the conclusions therein, with respect, appear to be fallacious. The Division Bench in Sushil Kumar De did not notice Hara Kumar where a previous Division Bench had taken a contrary view in the same set of circumstances. The views expressed in the Division Bench judgment of Sushil Kumar De and Raj Kumar Rowla are unacceptable and the conclusions therein, with respect, appear to be fallacious. It is the opinion expressed in the referring judgment of the Single Bench in Sushil Kumar De that appears to be the correct position at law. 32. The only matter that remains to be addressed is as to the nature of the authority exercised by a Court in seisin of any miscellaneous proceedings or other civil proceedings not governed in terms by the Code. In other words, the question is that if only the procedural part of the Code is made applicable by Section 141 thereof to miscellaneous proceedings and other civil proceedings not governed in terms by the Code, how would such Courts draw their authority for making substantive interlocutory orders of injunction or the like? The answer to that lies in the recognition that every Court falling within the branch that is the judiciary discharges the sovereign power of the State, subject to the bounds of its territorial and pecuniary authority and confined to the lis before it. Every Court -- and it is not necessary in this context to extend the discussion to tribunals and other judicial and quasi-judicial fora -- enjoys an element of inherent jurisdiction to meet the ends of justice and to prevent the abuse of the process of the Court. Section 151 of the Code is merely the statutory recognition of the principle and cannot be regarded as the solitary repository of such authority. Civil proceedings instituted before a civil Court will not only be regulated by the practice and procedure obtaining in the civil Court, but unless the statute governing the proceedings inhibits the residuary authority in the civil Court as a Court, the substantive right to do justice inheres in a civil Court merely by virtue of it being a Court. Civil proceedings instituted before a civil Court will not only be regulated by the practice and procedure obtaining in the civil Court, but unless the statute governing the proceedings inhibits the residuary authority in the civil Court as a Court, the substantive right to do justice inheres in a civil Court merely by virtue of it being a Court. It is such authority -- akin to Section 151 of the Code but definitely not flowing therefrom -- that vests in a civil Court in seisin of miscellaneous proceedings or other civil proceedings not governed in terms by the Code that empowers a civil Court in such matters to pass orders in the nature of injunction and the like. But such orders and even the final order culminating the lis in the Court of first instance would not be amenable to appeal unless expressly provided for in some statute. The mere extension of the procedural part of the Code to such proceedings by virtue of Section 141 of the Code cannot admit of a situation permitting an appeal therefrom under the Code. The distinction between appeals from orders made under the Code and appeals from orders under any special or local law is recognised in Section 108(b) of the Code. However, the right of appeal under any special or local law has to be expressly provided in such law itself and cannot be founded on any provision of the Code. 33. The two references are disposed of by holding that no appeal is maintainable from the order impugned in CO No. 1862 of 2011, whether under Order XLIII Rule 1(r) of the Code or otherwise; and; that no appeal would lie from the order impugned in CO No. 2310 of 2011. Both petitions under Article 227 of the Constitution are obviously maintainable -- since both orders are passed by Courts over which this High Court exercises superintendence -- but the consideration as to whether the petitions ought to be entertained need not be weighed down by any doubt as to the existence of any efficacious alternative remedy of appeal being available. There will be no order as to costs.