JUDGMENT KalyanJyoti Sengupta, CJ. 1. A third party has made an application for leave of this Court to prefer the appeal against the judgment and order of the learned single Judge, dt.26.4.2010 rendered in Writ Petition No.20967 of 2009. 2. A question has come up before this Court what is the legal provision to make such application, as general perception of the Court and common people is that an appeal can be preferred by a party, not a third party. But, one has to visualize the situation, if sometimes the judgment and decree or order unmindfully affects a third party and decision is rendered on adjudication against him, what would be his remedy, for, a person cannot ignore the judgment of the Court below, under law, to seek remedy, not taking the law in his own hands. Vide Rule 24 of the Writ Proceedings Rules, 1977 framed by this Court, a provision has been made for applicability of provisions of the Code of Civil Procedure (CPC). The Constitution of India does not provide for appellate provision in relation to proceedings under Article 226 of the Constitution of India. Provision for preferring appeal must be provided by the Statute expressly and we are to look therefor. 3. This Court has been established substantially as a successor Court of the original Madras High Court which was constituted by Letters Patent 1862 followed by 1865. Clause 15 of the Letters Patent of 1865 provides for intra Court appeal. We, therefore, set out Clause 15 of Letters Patent, 1865: “15. 3. This Court has been established substantially as a successor Court of the original Madras High Court which was constituted by Letters Patent 1862 followed by 1865. Clause 15 of the Letters Patent of 1865 provides for intra Court appeal. We, therefore, set out Clause 15 of Letters Patent, 1865: “15. Appeal from the Courts of Original Jurisdiction to the High Courts in its appellate jurisdiction:- And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the Judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st 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 judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.” 4. However, when this Court’s Letters Patent was issued, Constitution was not there, consequently, writ proceedings could not be thought off. This Letters Patent has been made applicable to this Court also and still it is continuing to apply appeal provision in a fit case as intra court appeal. However, when this Court’s Letters Patent was issued, Constitution was not there, consequently, writ proceedings could not be thought off. This Letters Patent has been made applicable to this Court also and still it is continuing to apply appeal provision in a fit case as intra court appeal. Therefore, the aforesaid Clause – 15 govern to entertain and decide the appeal by a forum in connection with writ proceedings also. But right to prefer appeal in the writ proceedings is governed by Section 96 of Code of Civil Procedure, which is reproduced as follows, as Writ Rule of this Court has made this provision applicable. 96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.” 5. Going by the language of Section 96 of CPC, it does not appear whether a party or non-party can prefer appeal. Undoubtedly, a party in the proceedings has right of appeal under the aforesaid provision but with regard to a non-party there was doubt. This provision has to be read with Order 41 of CPC which provides for methodology of preferring appeal. 6. Judicial pronouncements over the centuries almost have been settled that a party to the proceeding has got right to appeal automatically, but what about the position of a non-party is, if he or she is affected by the judgment and decree and order of the first Court. 6. Judicial pronouncements over the centuries almost have been settled that a party to the proceeding has got right to appeal automatically, but what about the position of a non-party is, if he or she is affected by the judgment and decree and order of the first Court. This question was dealt with long time back by English Court In Re: Securities Insurance Company (1894) 2 Ch 410) and Lord Justice Lindley, in that case at page 413 of the report, observed as follows: “I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it: but without leave he is not entitled to appeal.” 7. Thereafter, it appears that the Calcutta High Court has followed the aforesaid decision of the English Court, in the case of Srinath Das v. Probodh Chunder Das (1910) 11 Cal LJ 580).Then, the Bombay High Court in the case of The Province of Bombay v. Western India Automobile Association (AIR (36) 1949 Bombay 141), taking note of above English Court decision, has ruled in paragraph 15 of the report as follows: “…A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases.” 8. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases.” 8. A Full Bench of this Court in the case of Pullayya v. Nagabhushanam (1961) II An.W.R. 204) after taking into consideration the aforesaid English Court decision and the decision of the Bombay High Court, as above, has reiterated the same principle. For our benefit, we reproduce the same: “What emerges from the above discussion is that if a person is deemed to be a party under Order I, Rule 8, Civil Procedure Code, and for purposes of section 11, Explanation VI, Civil Procedure Code, leave to appeal could be granted to him by the appellate Court in an appropriate case, if the decision rendered in those proceedings would adversely affect him. It is not in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nominee parties would be bound by the decree or judgment in the proceeding and who could not by reason of Explanation VI to Section 11, Civil Procedure Code, agitate the same question in separate proceedings. It is needless to say that it would be illogical to hold that while a person is deemed to be a party to a proceeding and would be bound by a judgment rendered against him in a representative capacity, he would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. We hold that there is no obstacle created either by the provisions of the Civil Procedure Code or by any practice obtaining either in India or in England in the way of granting leave to file an appeal to persons who are not eo nominee parties to the proceeding but who at the same time would be bound by the judgment or decree of the Court granted in such proceeding.” 9. Thereafter, the Supreme Court, without noticing the English decision, in the case of Jatan Kanwar v. Golcha Properties ( AIR 1971 SC 374 ), in paragraph 3 of the judgment, held as follows: “…It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.” 10. Taking note of the aforesaid English Court decision [In Re. Securities Insurance Company (supra)] as well as the Supreme Court decision [in Jatan Kanwar v. Golcha Properties (supra)], Calcutta High Court rendered two decisions in the following two cases. i. United Commercial Bank v. Hanuman Synthetics Ltd. (AIR 1985 Calcutta 96). ii. Mahindra Kumar Bose v. Biswanath (AIR 1985 Calcutta 422). In United Commercial Bank v. Hanuman Synthetics Ltd. (supra), in paragraph 16 of the report, Justice Suhas Chandra Sen, speaking for the Bench, observed as follows: “We were referred to a large number of decisions of various High Courts on this point but it is not necessary to discuss those judgments in view of the clear enunciation of law by the Supreme Court in the case of Jatan Kumar Golcha ( AIR 1971 SC 374 ). In our opinion, the appellant was entitled to prefer this appeal with leave of the Appeal Court. The appeal cannot be dismissed in limine as not maintainable.” Their Lordships recorded that finding, noting the aforesaid English Court decision quoted by us [Securities Insurance Company (supra)], and also Bombay High Court decision [The Province of Bombay v. Western India Automobile Association (supra)] and Calcutta High Court decision [Srinath Das v. Probodh Chunder Das (supra)] and the Supreme Court decision in the case of Nookala Seetharamaiah v. Kotaish Naidu. ( AIR 1970 SC 1354 ). 11. Thus, after having read all those authoritative pronouncements, we want to reiterate that preferring appeal by a non-party is not a matter of right. ( AIR 1970 SC 1354 ). 11. Thus, after having read all those authoritative pronouncements, we want to reiterate that preferring appeal by a non-party is not a matter of right. Only a party to the proceeding can prefer appeal aggrieved by decision and judgment of the learned trial Judge as a matter of right to the appellate Court. However, non-party has to make an application to the appellate Court demonstrating prima facie affectation of right by the decision of the judgment and order of the first Court to obtain prior leave to prefer appeal. Obviously, if no such prima facie case is established with reference to the judgment and decision of the Court, the appellate Court will not grant leave, for, anyone and everyone not being a party can not interfere with the judicial proceedings without just cause. 12. In view of the aforesaid discussion, we now examine this case whether there exists any right or affection thereof by the judgment and order of the learned trial Judge. 13. We have seen the judgment of the learned trial Judge and we find that His Lordship has not decided anyone’s right or liability. The judgment is a short one and His Lordship’s intention was to set the land acquisition proceedings taking note of all possible eventualities. We quote the relevant portion of the order. “There is some uncertainty as to the stage of proceedings. While the petitioner has contended that the award was already passed, the learned Government Pleader reports that no instructions have been received so far. Be that as it may, in case no award was passed by the respondent in respect of the land referred to above, the feasibility of referring the same under Section 30 of the Act shall be considered. On the other hand, if the award is passed, it shall be open to the petitioners to work out their remedies under Section 18 of the Act, if it is otherwise permissible.” 14. Reference to Civil Court is provided under the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) against an Award. If the Award is to be objected to, then person aggrieved can make an application for reference to Collector, who will refer the same under Section 18 read with Section 19 of the Land Acquisition Act. Reference to Civil Court is provided under the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) against an Award. If the Award is to be objected to, then person aggrieved can make an application for reference to Collector, who will refer the same under Section 18 read with Section 19 of the Land Acquisition Act. Another is, if there is a dispute with regard to apportionment among claimants, then reference can also be made. Of course, in that case, adequacy and inadequacy or other question in relation to Award cannot be raised. 15. In this case, going by the material, we find that in terms of the order of the learned trial Judge Award has been passed and to which the petitioner before us has consented and again in terms of the order of the learned trial Judge the Award has been referred under Section 30 of the Act, to civil Judge. Therefore, disputes in that reference should be with regard to the apportionment of the legitimate claimants. Had there been a reference under Section 18 read with Section 19 of the Act, the petitioner before us could not get any notice as the party consented is not entitled to receive notice under Section 20 of the Act. Clause (b) of Section 20 of the Act is relevant and the same is set out hereunder. “20. Service of notice.- The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the court on that day, to be served on the following persons, namely:- (a) … … … (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and …” (emphasis supplied) 16. Section 30 of the Act deals with disputes as to apportionment and the said Section reads as under: “30. Section 30 of the Act deals with disputes as to apportionment and the said Section reads as under: “30. Dispute as to apportionment.- When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the court.” It indicates that in case of reference under Section 30 of the Act there is no such embargo with regard to entitlement of receipt of notice, from the words that occurred, ‘as to the persons to whom the same or any part thereof, is payable’. 17. Thus, the law protects the interest of the petitioner. The learned trial Judge, in our view, with the aforesaid decision has not taken away this protection. Therefore, we hold that having regard to the prima facie case made out before us, no leave is required to be granted to reopen the matter as we are firmly of the view that by the judgment and order the petitioner’s right has not been affected at all, rather we should say by necessary implication his right is protected. 18. Under the circumstances, it would be open for the petitioner to approach the Civil Court if the matter is not decided as on today. If it is decided, then remedy lies elsewhere, not before us. 19. Thus, we dismiss the application with the aforesaid observation. Consequently, the appeal shall also stand dismissed.