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2023 DIGILAW 102 (RAJ)

Shail Bhargava v. Shanti Devi

2023-01-09

PANKAJ MITHAL, SHUBHA MEHTA

body2023
JUDGMENT 1. Heard learned counsel for the appellants. 2. The delay of 23 days in filing the appeal is adequately explained. Accordingly, it is condoned subject to objections, if any, on appearance of the respondents. 3. Learned counsel for the appellants argued the matter on the merits as well. 4. The suit of the appellants for the possession of immovable property was decreed by the Court of first instance whereupon the judgment-debtor preferred a first appeal in the High Court. In the appeal conditional stay order was passed and since the judgment-debtor could not satisfy the conditions, he moved application for extending the time for making the deposits of the mesne profits which application has been allowed by the order impugned dated 24.05.2022. 5. The appellants have preferred this appeal challenging the above order. 6. The office has reported that the appeal is not maintainable. 7. The appeal has been preferred under Rule 134 of the Rajasthan High Court Rules, 1952 (for short 'the Rules of 1952'). The aforesaid rules read as under:- '134. (i) Appeal to the High Court from Judgment of Judges of the Court:- An appeal shall lie to the High Court from the Judgment or a final order (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 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 or in the exercise of criminal Jurisdiction) of one Judge of the High Court. (ii) Special appeal. - A person desiring to prefer a special appeal from the judgment of the Single Judge shall present a duly stamped memorandum of appeal within sixty days from the date of such judgment. Where such appeal is presented after the period mentioned above, it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfied the court that he had sufficient cause for non preferring the appeal within the aforesaid time. Where such appeal is presented after the period mentioned above, it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfied the court that he had sufficient cause for non preferring the appeal within the aforesaid time. The memorandum of appeal shall be drawn-up in accordance with Rules 125, 130 and 131 of this Chapter and shall be accompanied by a certified copy of the judgment or order appealed from alongwith two extra typed copies of the judgment or order.' 8. A simple reading of the aforesaid Rule indicates that it provides for appeal to the High Court from the judgment or the final order of one Judge of the High Court but with certain exceptions namely: 'i) Where the judgment is passed in exercise of appellate jurisdiction in respect of a decree or an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court; ii) Where the order is made in exercise of revisional jurisdiction; and iii) Where the sentence or the order passed or made is in exercise of the power of superintendence or in exercise of criminal jurisdiction.' 9. The submission of learned counsel for the petitioners-appellants is that an appeal does not fall within the excepted clause (i) inasmuch as it is not directed against a judgment passed in respect of a decree or order made in exercise of the appellate jurisdiction of the Court subject to the superintendence of the High Court. 10. He has relied upon the decision of the Supreme Court reported in (2001) 6 SCC 158 - Chandra Kanta Sharma Vs. Oriental Insurance Company Ltd. & Ors. wherein an identical clause 10 of the Letters Patent of the Patna High Court which is pari materia with Rule 134 of the Rules of 1952 came up for consideration. 10. He has relied upon the decision of the Supreme Court reported in (2001) 6 SCC 158 - Chandra Kanta Sharma Vs. Oriental Insurance Company Ltd. & Ors. wherein an identical clause 10 of the Letters Patent of the Patna High Court which is pari materia with Rule 134 of the Rules of 1952 came up for consideration. The Court held that the words 'in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court' are vital and if those words are read together with the earlier part, it becomes clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section 100 CPC or under any provision of a special Act in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court. 11. The order impugned is an order passed in a first appeal pending before the High Court and is an order having the trappings of the judgment passed in exercise of an appellate jurisdiction in respect of a decree or order passed by the Court subject to the superintendence of the High Court. Therefore, the impugned order falls in the first category of the excepted matter and as such is not amenable to special appeal under Rule 134 of the Rules of 1952. 12. In addition to the above, Section 100A of the Code of Civil Procedure, 1908 is very relevant and material for deciding whether against such an order further appeal would lie to the High Court against the decision of the Single Judge. Section 100A is reproduced herein below:- '100 A. No further appeal in certain cases.-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.' 13. A plain reading of the aforesaid provision which starts with a non obstante clause reveals that it has an over riding effect over the provisions of the Letters Patent or any other instrument having the force of law i.e. the Rules. A plain reading of the aforesaid provision which starts with a non obstante clause reveals that it has an over riding effect over the provisions of the Letters Patent or any other instrument having the force of law i.e. the Rules. It provides that notwithstanding anything contained in the Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being enforce, no further appeal shall lie from the judgment and decree of a Single Judge if passed on an appeal from an original or appellate decree or order. In other words, it provides that where an appeal from original or appellate decree or order is heard and decided by a Single Judge of the High Court and an order is passed thereon, no further appeal shall lie to the High Court. 14. In view of the aforesaid statutory provisions of Section 100A of C.P.C., it is implicit that when no intra-court appeal is provided against the final judgment and decree of the Single Judge passed in an appeal from an original or appellate decree or order, no intra-court appeal would also lie from any interlocutory order or an order of final nature passed in such appeal. 15. A Division Bench of the Patna High Court in the case of Jitendra Narayan Agarwal Vs. Rajiv Kumar Agrawal & Anr.-AIR 2007 (NOC) 21 (Patna) while considering an identical matter to the maintainability of a Letters Patent appeal under Clause 10 of Letters Patent of Patna held that LPA against the order passed on an interlocutory application in a pending appeal cannot be entertained on the face of Section 100A CPC. The aforesaid decision clearly lays down that an order passed on an application pending in a first appeal by the Single Judge of the High Court is not appealable before the Division Bench under Clause 10 of the Letters Patent of the Patna High Court which is pari materia with Rule 134(1) of the Rules of 1952. 16. The aforesaid decision clearly lays down that an order passed on an application pending in a first appeal by the Single Judge of the High Court is not appealable before the Division Bench under Clause 10 of the Letters Patent of the Patna High Court which is pari materia with Rule 134(1) of the Rules of 1952. 16. In view of the aforesaid facts and circumstances, we are of the opinion that no intra-court appeal is maintainable against an interlocutory order or the order of the final nature passed by the learned single Judge in a pending first appeal to the Division Bench in terms of Rule 134 of the Rules of 1952 as the same stand barred by Section 100A CPC. 17. Accordingly, the appeal is not maintainable and is dismissed.