P.S. SA THAPPAN (DEAD) BY LRS v. ANDHRA BANK LTD. AND ORS.

p. 229 Copy page pinpoint

Patent is restricted, there is no ground for holding that clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent. If for reasons aforementioned the expression "second appeal" includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-s.(l) is compeent."

Tracing the history of the Arbitration Act vis-a-vis the provision~ of Section 588 of the Code of Civil Procedure, 1877 and Section 104 of the Code, it was held that under Arbitration Act there does not exist any provision similar to Section 4 of the Code of Civil Procedure which would save an appeal under a special statute, opining :

"Under the Code of 1908, the right to appeal under the Letters Patent was saved both by s.4 and the clause contained in s. l 04( l ), but by the Arbitration Act of 1940, the jurisdiction of the Court under any other law for the time being in force is not saved; the right of appeal can therefore be exercised against orders in arbitration proceedings only under s.39, and no appeal (except an appeal to this Court) will lie from an appellate order.

There is no warrant for assuming that tjle reservation clause in s.104 of the Code of 1908 was as contended by counsel for the respondents, "superfluous" or that its "deletion from s.39(1) has not made any substantial difference" : the clause was enacted with a view to do away with the unsettled state of the law and the cleavage of opinion between the Allahabad High Court on the one hand and Calcutta, Bombay and Madras High Courts on the other on the true effect of s.588 of the Code of Civil Procedure upon the power conferred by the Letters Patent. If the legislature being cognizant of this difference of opinion prior to the Code of 1908 and the unanimity of opinion which resulted after the amendment, chose not to include the reservation clause in the provisions relating to appeals iQ the Arbitration Act of 1940, the conclusion is inevitable that it was so done with a view to restrict the right of appeal within the strict limits defined by s.39 and to take away the right conferred by other statutes .... "

The Court was, thus, concerned with the saving clause contained in Section 4 of the Code vis-a-vis sub-section (I) of Section 104 of the Code H

p. 230 Copy page pinpoint

A and not sub-section (2) thereof.

It is true that some stray observations had been made therein to the effect that under the Code of 1908, an appeal l!id lie under the Letters Patent from an order passed by a Single Judge of a Chartered High Court in an arbitration proceedings even if the order was passed in exercise of appellate B jurisdiction, but that was so, because the power of the Court to hear appeals under a special law for the time being in operation was expressly preserved. Furthermore, as has been noticed in Shah Babula/ Khimji (supra) that in tenns- of Clause 15 of the Letters Patent a second appeal could have been maintained only subject to leave granted by the appellate court therefor. No C such leave has been taken in this case. The said observation would not mean in absence of any detailed discussion as regard interpretation of the provisions of the Code, that despite bar created thereunder, an appeal would still be maintainable under Clause 15 of the Letters Patent.

Such observations were not only wholly unnecessary but the same did D not arise for consideration directly. Furthennore, the questions raised herein were not raised at the Bar nor the Bench had any occasion to consider the same in details. The said decision is also an authority for the proposition that a Letters Patent Appeal can be barred by necessary implication.

RESHAM SINGH : E The issue which is involved in these appeals was also involved therein. The question which arose for consideration as to whether if a right of appeal is provided under Sub-section (1) of Section 104 of the Code whether a further appeal is barred under Sub-section (2) thereof. Therein, the said question was answered in the affinnative holding: F "5. Section 104 CPC provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders. Sub-section (2) envisages that

G "(2) No appeal shall lie from any order passed in appeal under this Section".

6. It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned Single Judge under Order 43 Rule l(r) as provided in sub-section (1) of Section H l 04 by operation of sub-section (2) of Section 104, no further appeal

P.S. SATHAPPANv. ANDHRABANK LTD. [S.B. SINHA,J.] 231 shall lie from any order passed in appeal under this section." A NEW KENILWORTH HOTEL (P) LTD.:

In New Kenilworth Hotel (P) Ltd. (supra) also the question which arose for consideration was as to whether Subs-section (2) of Section 104 of the Code bars an appeal against an order passed by the appellate court in trrms B of Sub-section (l) of Section 104 thereof following Resham Singh (supra). The answer thereto was rendered in the affirmative. Therein it was not~ced that Clause l 0 of the Letters Patent of the Orissa High Court was in pari materia with Clause 15 of the Letters Patent of the Madras High Court. It was held : c "9. The question, therefore, was whether it was appealable. Since the learned Judge had exercised the original jurisdiction and an appeal would lie to the Division Bench under Order 43, Rule l, this Court considered that the order of the learned Single Judge was a judgivent within the meaning of Section 2(9) of the Code and, therefore, it was D appealable. It is seen that the exercise of power by the learned Sii:tgle Judge was as a first Judge under the Code and, therefore, the order, though it is one passed under Order 43, Rule l, since it givtrs a finality as regards that Court is concerned, was held to be a judgment within the meaning of Section 2(9) of the Code. Section 4(1) of the Code does not apply because it envisages that : E "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any under any other law for the time being in force." F Since Section 104(2) expressly prohibits an appeal, against an order passed by the appellate court under Order 43, Rule 1 read with Section 104(1) no ... appeal would lie. As a consequence no letters patent ap~ould lie. The view taken in Madhusudan Vegetable Products Co. Lta. v. Rupa Chemicals, AIR (1986) Guj 156 (1986) 27 Guj LR G 101 : (1986) Guj LH 93] and Firm Chhunilal Laxman Prasad v. Agarwal and Co., AIR (1987) MP 172 : (1987) MPLJ 165 by the two High Courts is correct in law. The view of the Division Bench in Sashikala Padhi v. Hiren Ghosh, ( 1991) 71 Cut LT 197 is correct in law. Sukuri Dibya case (1990) 32 OJD 431 (Civil) and the Birendra H

p. 232 Copy page pinpoint

A case (1992) 34 OJD 473 (Civil) are not good law.

10. It is seen that the very object of introducing these· amendments was to cut down the delay in disposal of suits and to curtail the spate remedial steps provided under the Code. As held earlier, the right of appeal is a creature of the statute and the statute having expressly B prohibited the filing of second appeal under sub-section (2) of Section l 04, the right of appeal provided under clause l 0 of the letters patent would not be available. As already noted, the main part of clause 10 clearly indicates that "an appeai would lie from the judgment not being a judgment passed in exercise of appellate jurisdiction". Thereby the judgment from an appellate jurisdiction stands excluded under the c first part of clause l 0 of the letters patent itself. Therefore, the Division Bench of the High Court was right in holding that the letters patent appeal would not lie against an order of the learned Single Judge."

The aforementioned. decisions meet our approval. D SOME OTHER CASE LAWS :

Mr. Sundravardhan had placed reliance on L. Ram Sarup (supra) which has been referred to in Guiab Bai (supra) for the proposition that when a matter comes before the High Court even on the appellate side, the appeal from a judgment passed shall be governed by the Letters Patent. We do not agree with the said view and are of the opinion that the decision in Guiab Bai (supra) must be read in the context in which it was rendered.

In the said case, the court was concerned with the construction of sub- section (2) of Section 588 of the Code of Civil Procedure, 1877 which provided for finality clause. Having held that despite such finality clause, as an appeal thereagainst in terms of Clause 15 of the Letters Patent had not been expressly prohibited, the same was maintainable.

We have noticed hereinbefore that in South Asia Industries Private Ltd, (supra), it has clearly been held that filing of appeal ~'b_e barred by G . the Legislature either expressly or by necessary implication. In Chandra Kanta Sinha (supra), New Kenilworth Hotel (P) Ltd (supra) was distinguished stating :

"12. Learned counsel for the respondents, however, argued that H clause 10 provides that an appeal shall lie to the said High Court only

p. 233 Copy page pinpoint

from "a judgment passed in exercise of the appellate jurisdiction not A being a judgment passed in the exercise of the appellate jurisdiction" and as the judgment of the learned Single Judge was passed in the appellate jurisdiction, a letters patent appeal was not maintainable. In our view, the contention of the learned counsel is based on a misreading of clause 10. He has overlooked the vital words, namelr, B "in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court" in the first limb of clause 10. If those words ~re also read along with the words relied upon by the learned counsel, it becom~s clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section l 00 CPC (or under any provision of a special C Act) which is in respect of a decree or order made in exercise of appellate jurisdiction in the first appeal, filed under Section 96 CPC (or under any provision of a special Act) by a court subject to the superintendence of the High Court. In other words, from a judgment passed by one Judge in second appeal, under Section 100 CPC or any other provision of a special Act no letters patent appeal will lie to the D High Court provided the second appeal was against a decree or order of a District Judge or a SubordiPate Judge or any other Judge subje¢t to the superintendence of the High Court passed in a first appeal under Section 96 CPC or any other provision of a special Act."

It was further held : E

"13. In New Kenilworth Hotel (P) Ltd case aggrieved by the order of the trial court passed under Order 39 Rules (1) and (2), ap appeal under Section 104(1) CPC read with Order 43 Rule l(r) w~s filed before the High Court which was disposed of by one Judge of F the High Court. From the order/judgment of one Judge, a letters patent appeal (second appeal) was filed before the Division Bench under Clause 10 of the Letters Patent of the Orissa High Court. The Division Bench of the High Court held that the letters patent appeal was not maintainable. Having regard to the provision of Section 104(2), the appeal before the Division Bench was barred. On appeal to this G Court it was held : (SCC p.466, para 10)

"As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing of second appeal under sub-section (2) of Section 104, the right of appeal provided under clause I 0 of the Letters Patent would not H

234 SUPREME COURT REPQRTS (2004) SUPP. 5 S.C.R.

A be available."

Therefore, reliance on the judgment of this Court in New Kenilworth Hotel (P) Ltd case will be of no avail to the respondents."

In Subal Paul (supra), it was held : B "46. We may notice that even in Municipal Corporation of Brihanmumbai and Anr v. State Bank of1ndia, [1999] I SCC 123, this Court while interpreting the provisions of Sections 218-D and 217(1) of the Bombay Municipal Corporation Act, 1888, held that when an appeal is in the form of second appeal having regard to the c bar contained in Section I OOA of the Code of Civil Procedure, no further appeal shall lie. It was observed :

"This section has been introduced to minimize the delay in the finality of a decision. Prior to the enactment of the above provision, under the letters patent, an appeal against the decision D of a Single Judge in a second appeal was, in certain cases, held competent, though under Section I 00 of the Code of Civil Procedure, there was some inhibition against interference with the findings of fact. The right of taking recourse to such an appeal has now been taken away by Section 100-A of the Code of Civil Procedure (supra). Since an appeal under Section 217( I) E of the Act is a first appeal in a second forum/court and an appeal under Section 218-D of the Act is the second appeal in the third forum/court, no further appeal would be competent before the fourth forum/court in view of Section 100-A of the Code of Civil Procedure (supra)." F In Prataprai N. Kothari v. John Braganza, [1999] 4 SCC 403, even in a suit for possession only not based on title, a Ie~ers patent appeal was held to be maintainable."

In this case, we are not concerned with such a situation, as sub-section G (2) of Section 104 of the Code would clearly bar such appeals.

In Central Mine Planning and Design Institute Ltd. (supra), the question which falls for our consideration did not fall therein. The only question which was raised was as to whether an order passed under Section 17-B of the Industrial Disputes Act is a judgment within the meaning of Clause I 0 of H the Letters Patent of Patna High Court.

P.S. SATHAPPANv. ANDHRABANKLTD. [S.B. SINHA,J.] 235 In Madhusudan Vegetable Products Co. Ltd., Ahmedabad v. Rupa A Chemicals Vapi and Ors., AIR (1986) Guj. 156, Majmudar, J. (as His Lordship then was) speaking for a Division Bench of the Gujarat High Court inter alia analyzing the provisions of Section 104 of the Code observed :

"11 All further appeals from appellate orders under S.104(1) read with 0.43, R.I are expressly barred by S. 104, sub-sec. (2) and S. B 105 of the Civil P.C. If any lower appellate Court decide~ a miscellaneous appeal under 0. 43, R.1, only revision lies before High Court. There is no occasion for the High Court to exercise second appellate jurisdiction against appellate orders passed by subordinate Courts. Second appeal lies only against appellate decrees of subordinate C Courts as per S. 100, Civil P.C. Hence the words "appellate decree or order" must mean appeal before learned single Judge of the High Court either against appellate decree as per S. 100, Civil P.C. or against original order of subordinate Court under 0. 43, Rule l, Civil P.C." D Yet aga.in in Firm Chhunilal Laxman Prasad v. Mis Agarwal and Co. and Ors., AIR (1987) M.P. 172, N.D. Ojha, J. (as His Lordship then was) opined:

"5. The effect of the aforesaid decision is that if an order has been passed by a learned single Judge of the High Court either appointjng E a receiver or granting or refusing injunction under 0.39 Rules I &nd 2 in some original proceedings, letters patent appeal would lie agaihst that order treating it to be a judgment. The Supreme Court, however, does not go a step further and say that if the order passed by the High Court was not an original order, but had been passed in exercise of its appellate jurisdiction u/s. 104 read with 0.43 Rule 1 C.P.C., even F then a letters patent appeal would lie. Indeed such an argument is not open on the clear language of sub-section (2) of S. 104 C.P.C., which has been held by the Supreme Court to be applicable. to a letters patent appeal. Sub-section (2) of Section I 04 provides that no appeal ,- shall lie from any order passed in appeal under this section." G The aforementioned two decisions have expressly been approved by this Court in New Kenilworth 'Hotel (P) Ltd. (supra).

Law in this country, which is prevailing since 1986, has been consist~nt and we do not see any reason to depart from the said view. H

p. 236 Copy page pinpoint

A PRECEDENT:

While analyzing different decisions rendered by this Court, an attempt has been made to read the judgments as should be read under the rule of precedents. A decision, it is trite, should not be read as a statute.

B A decision is an authority for the questions of law detennined by it. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well-known, must be read in its entirety and the observations made therein should receive consideration in C the light of the questions raised before it. (See Haryana Financial Corporation and Anr. v. Mis. Jagdamba Oil Mills and Anr., JT (2002) I SC 482, Union of India and Ors., v. Dhanwanti Devi and Ors., [1996] 6 SCC 44, Dr. Nalini Mahajan v. Director of Income Tax (Investigation) and Ors., (2002) 257 ITR 123, State of UP and Anr. v. Synthetics and Chemicals Ltd and Anr., [1991] 4 SCC 139, A-One Granites v. State of U.P. and Ors., (2001) l AIR SCW D 848 and Bhavnagar University v. Pa/itana Sugar Mill (P) Ltd and Ors., [2003] 2 sec 111.

Although, decisions are galore on this point, we may refer to a recent one in State of Gujarat and Ors., v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors., AIR (2004) SC 3894 wherein this Court held: E "It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used."

It is further well-settled that a decision is not an authority for the F proposition which did not fall for its consideration.

CONCLUSION :

The upshot of our decision would be :

G (1) Finality clause contained in a statute, unless attached to an order passed in appeal, would not take away the right of appeal expressly provided for under the special statute;

(2) Letters Patent being a subordinate legislation has the force of law but the same is subject to an Act of Parliament; H

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA, J.] 237

(3) If an appeal is maintainable under sub-section ( l) of Section 104 of A the Code, no further appeal threfrom would be maintainable in terms of sub- section (2) thereof.;

(4) A right of appeal being creature of a statute, it may provide for a limited right of appeal or limiting the applicability thereof. B (5) Clause 15 of the Letters Patent cannot override the bar created under Section 104 of the Code. Section 104· (1) of the Code must be read with sub-section (2) of Section 104; and by reason thereof saving clause in relation to the Letters Patent would not be attracted. An attempt should be made to uphold a right of appeal only on harmonious construction of Sections C 4, 104 and other provisions of the Code.

(6) However, when an appeal is provided for under a Special Act, Section 104 of the Code shall have no application in relation thereto as it merely recognizes such right but does not provide for a right of appeal.

(7) If a higher status is given to a Letters Patent over a law passed by the Parliament including the Code of Civil Procedure, the same would run contrary to the history of the Letters Patent as also the Parliamentary Acts.

(8) The judgment of this Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it;

In view of our foregoing findings, it is not necessary to consider the other submissions made at the Bar.

For the reasons aforementioned, there is no merit in these appeals which are dismissed accordingly. No costs.

S.N. VARIA VA, J. We have had the benefit of reading the Judgment of Brother Sinha, J. With the greatest of respect to him we are unable to agree with his view for the following reasons. Facts have been set out in detail by Brother Sinha, J. and need not be repeated here except to state that this Appeal is against the Judgment of the High Court of Madras dated 22nd August, 1997, by which it has been held that a Letters Patent Appeal is not maintainable against an Order passed by a single Judge of the High Court sitting in Appellate Jurisdiction.

Because of the importance of the question involved, this Court by an B

p. 238 Copy page pinpoint

A Order dated 9th August, 2001 referred the matter to a larger Bench. The Order reads as follows:

"Against an application filed before the executing court for setting aside the court auction which was dismissed, .an appeal was filed before the High Court. On the dismissal of the same by the Single B Judge, a letters patent appeal was filed. A Full Bench relying upon a decision of this Court in New Kenilworth Hotel (P) Ltd v. Orissa State Financial Corporation and Ors., [1997] 3 SCC 462 came. to the conclusion that in view of the provisions of Section 104(2), C.P.C., appeal to the Division Bench was not maintainable. To the same effect are two other decisions of this Court in Resham Singh Pyara c Singh v. Abdul Sattar, [1996] 1 SCC 49 and Vinita M Khanolkar v. Pragna M Pai and Ors., [1998] 1 SCC 500.

Learned senior counsel for the appellant has drawn our attention to a decision of the Constitution Bench in Guiab Bai and Anr. v. Puniya, [1966] 2 SCR 102 and has contended that the observations D in the said judgment clearly support his contention that by virtue of provisions similar to Clause 15 of the Letters Patent an appeal could be filed against he judgment of the Single Judge.

We are aware of the fact'that Clause 15 of the Letters Patent E applicable to Madras High Court was similar to Clause 10 applicable to Orissa High Court which was construed in the case of New Kenilworth (supra). This Court did not, in New Kenilworth's case, consider the effect of the decision in Guiab Bai 's case (supra). Furthermore, reference in Clause 15 of the Letters Patent which excludes the applicability of the same in relation to a judgment passed F in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subordinate to the superintendence of the High Court would prima facie indicate that it is only where the Single Judge is hearing an appeal from an appell(lte order of the court subordinate to it that the said clause 15 would not apply. G In our opinion, the matter is not free from doubt, especially in view of the decision of the Constitution Bench in Guiab Bai 's case [ 1966] 2 SCR I 02 and it wou Id be appropriate therefore that the papers are placed before Hon 'ble the Chief Justice for referring the case to a 'larger Bench, in view of not only the conflict in decisions H

P.S. SATHAPPAN v. ANDHRA BANK LTD. [S.N. VARIAVA, J.) 239

which is stated to be there but also in view of the importance of the A point in issue, namely, the effect of the provisions of Section 104(2) vis-a-vis Clause 15 of the Letters Patent."

The Chief Justice has since placed this matter before a Constitution Bench. B Before us, it has not been disputed that if Section 104 of the Civil Procedure Code did not provide a bar, then in this case a Letters Patent Appeal would be maintainable. It is also not disputed that at the relevant time Section lOOA C.P.C. did not bar such an Appeal in this case.

In order to decide whether Section 104(2) C.P.C. would bar a Letters C Patent Appeal, one has to first notice the history and the view taken by various Courts in India on this aspect. In the Civil Procedure Codes of 1877 and 1882 the equivalent to Section 104 read with Order 43 Rule I was Section 588. It reads as follows:

"588 An appeal shall lie from the following orders under this Code D and from no other such orders:-

The orders passed in appeals under this section shall be final" E To be noted that Section 588 did not contain words to the effect "under a law for the time being in force". However, Section 588 did provide that "an appeal shall lie from the following orders and no other such orders". It also provided that "orders passed in Appeal under that Section shall be final". These words have the same meaning and effect as the words "ho Appeal shall lie from any Order passed in Appeal under this Section". Section 588 F by giving a finality to orders passed under that Section precluded further appeals. The question was whether Section 588 also barred a Letters Patent Appeal.

There was a divergence of opinion amongst the High Courts on this point. This question then came up before the Privy Council in the case of G Hurrish Chunder Chowdhry v. Kali Sundari Debia reported in 10 I.A. Pg. 4. The Privy Council held as follows:

"It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting H

p. 240 Copy page pinpoint

A certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court."

These observations of the Privy Council again led to a conflict of decisions amongst various High Courts. The Bombay, Calcutta and Madras High Courts held that Section 588 did not take away the right of Appeal given under the B Letters Patent. On the other hand, the Allahabad High CC'urt took a different view and held that a Letters Patent Appeal was barred under Section 588 C.P.C. In view of this conflict of views the Legislature stepped in and amended the law. It introduced Section 4 and also introduced Section 104 C.P.C., which read as follows:

c "4. Savings.- {I) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. D (2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landhoider or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such E land.

104. Orders from which appeal lies.- (I) An aRpeal 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 0ther orders - F

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.

G (2) No appeal shall lie from any order passed in appeal under this section."

To be immediately noted that now the Legislature provides that the provision of this Code will not affect or limit special law unless specifically excluded. The Legislature also simultaneously saves, in Section 104(1), appeals under H

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA, J.] 241 .. "any Jaw for the time being in force". These would include Letters Patent A Appeals. After this amendment, even the Allahabad High Court changed its view. In the case of L. Ram Sarup v. Mt. Kaniz Ummehani reported in AIR (1937) Allahabad 165 the earlier view was noted and it was thereafter observed as follows:

"There is however one material distinction between the provisions of B the old Code and those of the new Code. In the Code of 1882 there was no exemption as regards any special Jaw that may be in force for the time being and the Code of Civil Procedure, except as regards certain enactments mentioned in S. 4 and other similar sections, would supersede all such Jaws. In Cl.35 of the Letters Patent, there was a clear provision that the Letters Patents are subject to the legislative c powers of the Governor-General in Council. It was accordingly thought that the Code of Civil Procedure would prevail against the provisions of the Letters Patent. In the new Code of 1908 there is a special provision in S. 4 to the effect that: I) In the absence of any specified provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other Jaw for the time being in force.

It follows that unless there is any specific provision to the contrary in this Code of Civil Procedure, it cannot affect any special law or special jurisdiction or power which is conferred on the High Court. The Letters Patent undoubtedly confers such special jurisdiction and power. It would therefore follow that the provisions of the Letters Patent are saved by virtue of S. 4, unless there is specific provision to the contrary. We do not find any specific provision in S. 104 showing that that section is intended to apply to Letters Patent appeals as well. The opinion expressed by the Division Bench in Piare Lal's case AIR (1917) All. 325 has not been followed in other High Courts. It seems to us that it is not necessary to refer this point to a Full Bench because of one important circumstance. At the time when the case of Piare Lal was decided the new Code of Civil Procedure had come into force and its provisions could be considered by the Bench to supersede the provisions of the Letters Patent. Thereafter Cl. 10, Letters Patent, was amended in 1929 when a right of appeal has been ;- allowed from every judgment of a Single Judge where leave is granted. H

p. 242 Copy page pinpoint

A At this latest provision in the Letters Patent has not been superseded by any provision of the Code of Civil Procedure. we think that it must prevail.

It may further be pointed out that Sec. 104(1), C.P.C., itself provides "save as otherwise expressly provided. . . by any law for the time B being in force." Accordingly the prohibition contained in that sub- section that an appeal shall not lie from any other order, would not apply to a case where an appeal is provided for under the Letters Patent. It may however be conceded that this saving clause does not occur in sub-s. (2), S. 104. But under the corresponding S. 588 of the old Code where the words were "orders passed in appeal under this c section shall be final," their Lordships of the Privy Council in 9 Cal 482, at p. 492, observed thats. 588, which has the effect of restricting certain appeals, does not apply to a case where the appeal is from one of the Judges of the High Court to the full Court. Obviously S. 104(2) was intended to apply to appeals where allowable under the Code of D Civil Procedure. In any case S. l 04(2) does not contain any express provision which would suggest that the provisions of the Letters Paterit have been abrogated. We accordingly hold that under Cl. IO, Letters Patent, an appeal lies from the order of a Single Judge passed in appeal."

E Thus now all High Courts in India were unanimously of the view that Section 104 C.P.C. did not prohibit a Letters Patent Appeal. At this stage it must be mentioned that the abovementioned authority of the Allahabad High Court has been overruled by this Court in Shah Babula/ Khimji v. Jcy.aben D. Kania, reported in [1981] 4 SCC 8. But, as is set out in greater details F hereafter, the view that a Letters Patent Appeal is maintainable is specifically approved. The overruling is on· another aspect set out hereinafter.

In National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd., AIR (1953) SC 357 the question arose whether a Letters Patent appeal under Clause 15 of the Letters Patent of the Bombay High G Court was maintainable against the Judgment of a single Judge exercising appellate jurisdiction under Section 76 of the Trade Marks Act, 1940. Holding that such an appeal was maintainable, this Court observed:

"Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court H being seized as such of the appellate jurisdiction conferred by S. 76

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA,J.] 243

it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act."

Referring to Clause 44 of the Letters Patent, it was held that the provisions of the Letters Patent were subject to the legislative powers of the Governor General in Legislative Council, and therefore, in the present day context, subject to the legislative power of the appropriate legislature. But this Court found nothing in the Trade Marks Act restricting the right of appeal under Clause 15 of the Letters Patent. c This question was also considered by a four Judges Bench of this Court in the case of Union of India v. Mahindra Supply Company, reported in [1962] 3 SCR 497. In this case, a dispute between the parties was referred to Arbitration. The Arbitrator gave an award. An application was made for setting aside the award. That application was rejected. Against that order an D Appeal was preferred to the High Court under Section 39(1) of the Indian Arbitration Act, 1940. A single Judge of the High Court allowed the Appeal and set aside the award. Thereupon a Letters Patent Appeal was filed. The question was whether a Letters Patent Appeal was barred. Section 39 of the Indian Arbitration Act reads as follows: E "(I) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order:

An order F (i) superseding an arbitration;

(ii) on an award stated in the form of a special case;

(iii) modifying or correcting a award;

(iv) filing or refusing to file an arbitration agreement G (v) staying or refusing to stay legal proceedings where there is an arbitration agreement;

(vi) setting aside or refusing to set aside. an award:

p. 244 Copy page pinpoint

A Provided that the provisions of this section shall not apply to any. order passed by a Small Cause Court.

(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." B It is thus to be seen that Section 39 specifically barred a second Appeal. A.lso to be noticed that in Section 39 there is no saving clause similar to that in Section 104(1) C.P.C. Further, in the Arbitration Act there is no provision similar to Section 4 C.P.C. It was submitted that, even though Section 39 barred a second Appeal, an analogy should be taken from Section I 04 C.P.C. C and it must be held that a Letters Patent Appeal was maintainable. In considering this submission the conflict of opinions amongst the various High Courts regarding maintainability of a Letters Patent Appeal, in spite of Section 104 C.P.C., was set out and this Court then held as follows:

"The legislature in this state of affairs intervened, and in the Code D of 1908 incorporated s. 4 which by the first sub-section provided:

"In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force:;

and enacted in s. l 04( l) that an appeal shall be from the orders set out therein and save as otherwise expressly provided, in the body of the· Code or by any law for the time being in force, from no other orders. The legislature also expressly provided that "no appeal shall lie from any order passed in appeal under this section."

Section 105 was substantially in the same terms as s. 59 l of the earlier Code.

The intention of the legislature in enacting sub-s. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasized by s. 4 which provides that in the absence of any specific provision to the contrary, nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against H

P.S. SATHAPPAN v. ANDHRA BANK LTD. (S.N. VARIAVA, J.] 245

judgments (which did not amount to decrees) under the Letters Patent, A was therefore not affected bys. 104{1) of the Code of Civil Procedure, 1908."

Thus a four Judges Bench of this Court, as early in 1962, recognized that the Legislature had now specifically saved a Letters Patent Appeal. This Court then went on to hold that Section 4 C.P.C. provided as follows: B "By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by Cl. 37 subject to the legislative power of the Governor-General in Council and also of the Governor~ in-Council under the Government of India Act, 1915, and may in all respects be amended or altered in exercise of legislative authority. Under S. 39(1 ), an appeal lies from the orders specified in that sub- section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in S.39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that cl.(2) does not similarly restrict the exercise of appellate power granted by the Letters Patent. If for reasons aforementioned the expression "second appeal" includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-s. (l) is competent."

This Court however noticed that in the Arbitration Act, there was no provision similar to Section 4 of the Code of Civil Procedure which preserved powers reserved to Courts under special statutes. Under the Code of Civil Procedure, the right to appeal under the Letters Patent is saved both by Section 4 and the clause contained in Section 104( I), but by the Arbitration Act, 1940, the jurisdiction of the Courts under any other law for the time being in. force is not saved. The right of appeal could therefore be exercised against orders in arbitration proceedings only under Section 39, and no appeal lay from the appellate order (except an appeal to this Court). The provisions in the Letters Patent providing for appeal, in so far as they related to orders passed in Arbitration proceedings, were held to be subject to the provisions of Section 39(1) and (2) of the Arbitration Act, as the same is a self contained H

p. 246 Copy page pinpoint

A Code relating to arbitration.

The aforesaid two decisions were noticed in South Asia Industries (P) Ltd v. S.B. Sarup Singh and Ors., AIR (1965) SC 1442. This Court was called upon to interpret the provisions of Sections 39 and 43 of the Delhi Rent Control Act, 1958 with a view to answer the question whether an appeal was competent under Clause 10 of the Letters Patent of the High Court of Lahore against the judgment of a single Judge in a second appeal under Section 39 of the aforesaid Act.

Section 39 provided an appeal to the High Court against the judgment of the Tribunal only on a substantial question of Jaw. Section 43 read as under:

"Save as otherwise expressly provided under this Act, every order made by the Controller or an order passed an appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding."

It was not even disputed before this Court that the right of appeal conferred by Clause 10 of the Letters Patent could be taken away by law made by the appropriate legislature. Under the Rules an appeal under Section 39 was to be heard by a Single Judge, and under Clause 10 of the Lett~rs E Patent an appeal to the High Court lay against the judgment of a single Judge. This Court held that unless the right of appeal was taken away by the appropriate legislature either expressly or by necessary implication, an appeal was competent under Clause 10 against the judgment of the single Judge to the High Court. However, on an interpretation of Section 43 of the Act, this Court held that the expression "final" put an end to a further appeal and the F section imposed a total bar.

The question whether a Letters Patent Appeal would be barred was considered by a Constitution Bench of this Court in the case of Guiab Bai v. Puniya reported in [1966) 2 SCR 102. In this case, an application under Section 25 of the Guardians and Warcjs Act was rejected by !1 Civil Court. G This decision was reversed in Appeal by a single .Judge of the Rajasthan High Court. Against the decision of the single Judge an Appeal under Clause 18 l· of Rajasthan High Court Ordinance was filed. The question was whether such an Appeal was maintainable. It was submitted that such an Appeal was not maintainable by virtue of Sections 4 7 and 48 of the.Guardians and Wards H Act. Sections 47 and 48 read as follows:

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARJAVA,J.] 247

"47. Orders appealable.- An appeal shall lie to the High Court A from an order made by a Court,-

(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or

(b) under section 9, sub-section (3), returning an application; or B (c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or

(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or c (e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or

(f) under section 32, defining, restricting or extending the powers of a guardian; or D (g) under section 39, removing a guardian; or

(h) under section 40, refusing to discharge a guardian; or

(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or

G) under section 44 or section 45, imposing a penalty.

48. Finality of other orders.- Save as provided by the last foregoing section and section 622 of the Code of c;ivil Procedure, 1882, an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise."

Thus Section 47 permitted "an appeal" to the High Court whilst Section 48 gave a finality. The Constitution Bench, inter alia, held as follows: G "Before dealing with this point, two relevant facts ought to be mentioned. The Act was extended to Rajasthan by the Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951; but before the Act was thus extended to Rajasthan, the Ordinance had already been promulgated. Clause 18(1) of the Ordinance provides, inter alia, that an appeal shall lie to the High Court from the Judgment H

p. 248 Copy page pinpoint

A of one Judge of the High Court; it accepts from the purview of this provision certain other judgments with which we are not concerned. It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court, does not fall within the category of the exceptions provided by clause 18( 1) of the ordinance; so that B if the question about the competence of the appeal preferred by the appellants before the Division Bench of the High Court had fallen to be considered solely by reference to clause 18(1), the answer to the point raised by the appellants before us would have to be given in their favour. The High Court has, however, held that the result of c reading ss. 47 and 48 together is to make the present appeal under clause 18(1) of the Ordinance incompetent. The question arises before us is: is this view of the High Court right?"

This Court then considered the effect of Sections 4 7 and 48 of the Guardians and Wards Act and held as follows: D "The finality prescribed for the order made under this Act is subject to the provisions of S.47 and S.622 of the earlier Code which corresponds to S.115 of the present Code. In other words, the saving clause unambiguously means that an order passed by the trial Court shall be final, except in case where an appeal is taken against the said order under S.47 of th~ Act, or the propriety, validity, or legality of the said order is challenged by a revision application preferred under S.115 of the Code. It is, therefore, essential to bear in mind that the scope and purpose of S.48 is to make the orders passed by the trial Court under the relevant provisions of the Act, final, subject to the result of the appeal which may be preferred against them, or subject to the result of the revision applications which may be filed against them. In other words, an order passed on appeal under S.17 of the Act, or an order passed in revision under S.115 ·of the Code, are, strictly speaking, outside the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provisions, subject, of course, to any appeal provided by law or by a constitutional provision, as for instance, Art. 136. The construction of S.48, therefore, is that it attaches finality to the orders passed by the trial Court subject to the provisions prescribed by S.4 7 of the Act, and S.115 of the Code."

H Thus even though Section 48 provided for a finality it still saved appeals

p. 249 Copy page pinpoint

pennitted by Section 47 and revisions under Section 622 of the then Civil A Procedure Code (Section 115 of the present Civil Procedure Code). This Court then went on to hold as follows: t "The question as to whether an appeal pennitted by the relevant clause of the Letters Patent of a High Court can be taken away by .implication, had been considered in relation to the provisions of s. B 588 of the Codes of Civil Procedure of 1877 and J882. The first part of the said section had provided for an appeal from the orders specified by clauses {l) to (29) thereof, and the latter part of the said section had laid down that the orders passed in appeals under this section shall be final. Before the enactment of the present Code, High Courts C -in India had occasion to ~ider whether the provision as to the finality of the appellate orders prescribed by s. 588 precluded an appeal under the relevant clauses of the Letters Patent of different High Courts. There was a conflict of decisions on this point. When the matter was raised before the Privy Council in Hurrish Chunder Chowdhry v. Kali Sundari Debia, (10 I.A. 4 at p. 17.); the Privy D Council thus tersely expressed its conclusion: "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court". E Basing themselves on these observations, the High Courts of Calcutta, Madras, and Bombay had held that s. 588 did not take away the right of appeal given by clause 15 of the Letters Patent, vide Too/see Money Dassee and Ors. v. Sudevi Dassee and Ors., {1899) 26 Cal.

361. Sabhapathi Chetti and Ors. v. Narayanasami Chetti, (1902) 25 F Mad. 555., and The Secretary ofState for India in Council v. Jehangir Maneckji Cursetji, {1902) 4 Born. L.R. 342.) respectively. On the other hand, the Allahabad High Court took a different view, vide Banno Bibi and Ors., v. Mehdi Husain and Ors., (1889) 11 Alld. 375.), and Muhammad Naim-ul-Lah Khan v. Ihsan-Ullah Khan, (1892) 14 Alld. 226 (F.B.). Ultimately, when the present Code was enacted, G s. 104 took the place of s. 588 of the earlier Code. Section 104(1) provides that 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. It will be noticed that the saving clause which refers to the provisions of the H ·

p. 250 Copy page pinpoint

A Code, or to the provisions of any law for the time being in force, gives effect to the view taken by the Calcutta, Madras and Bombay High Courts. In fact, later, the Allahabad High Court itself has accepted the same view in L. Ram Sarup v. Mt. Kaniz Ummehani, AIR (1937) Alld. 165.)." r::

B The above observations are in context of the matter before it. The Constitution Bench was considering whether Letters Patent Appeals can be barred. The observations were necessitated and have been made to emphasize that Letters Patent cannot be· excluded by implication. This is clear from the following observations: c "We have referrs.~..to.J.h,c;:_~~.~esis_igns.to emphasize the fact that even where the relevant provision of s. 588 of the earlier Code made certain appellate orders final, the consensus of judicial opinion was that the provisions did not preclude an appeal being filed under the relevant clause of the Letters patent of the High Court"

D Thus, a Constitution Bench of this Court has held that the words "under any law for the time being in force" in Section I 04( 1) saves Letters Patent Appeals. This decision is binding on this Court.

Faced with the situation it was submitted that the above observations have been made only in the context of Sections 47 and 48 of the Guardians and Wards Act. It was submitted that therefore these observations cannot be applied to a case where an Appeal is under Section 104 itself. This argument overlooks sub-clause (I) of Section 104 C.P.C. which now categorically saves Appeals under any law for the time being in force. Thus if any other law for the time being in force permits an appeal the same would be maintainable irrespective of Section 104(2) C.P.C. As stated above, this would include a Letters Patent Appeal. Also, the observations r,_1Joted above are not in the context of Sections 47 and 48 of the Guardians and Wards Act, but in the context of whether a Letters Patent Appeal can be barred. That was the question before the Court. The Constitution Bench was considering whether G a Letters Patent Appeal was maintainable. It was then submitted that this authority does not take into consideration and does not refer to sub-clause (2) of Section 104. It was submitted that as sub-clause (2) of Section 104 was not considered a fresh look is required. Once it is noted that Section 104(1) saves such Appeals there is no need to refer to or mention Section 104(2). Section 104(2) cannot lay down anything contrary to Section l 04(1 ). To be remembered that Legislature has now put in the saving clause in order to give

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA,J.) 251

effect to the Bombay, Madras and Calcutta views. If an interpretation, as sought to be given by Mr. Vaidyanathan, is accepted then there would be a conflict between sub-clause ( l) and sub-clause (2) of Section l 04. Sub-clause ( l) would save/perm_it a Letters Patent Appeal whereas sub-clause (2), on this interpretation, would bar it. In our view, there is no such conflict. As seen above, Section 104(1) specifically saves a Letters Patent Appeal. Sub-clause B (2) can thus only apply to such appeals as are not .:a\'"!.J by sub-clause (1). In other words sub-clause 2 of Section l 04 can have no application to appeals saved by Section 104(1 ). Also it is well established rule of interpretation that if one interpretation leads to a conflict whereas another interpretation leads to a harmonious reading of the Section, then an interpretation which leads to . a harmonious reading must be adopted. In the guise of giving a purposive C interpretation one cannot interpret a Section in a manner which would lead to a conflict between two sub-sections of the same Section. We clarify that, as stated above, there is no conflict, but if the interpretation, suggested by Mr. Vaidyanathan, were to be accepted then there would clearly be a conflict. The only way a conflict can be avoided is to hold that sub-clause (2) only bars sue~ Appeals as are not saved by sub-clause (1) of Section 104. D In the case of Shah Babula/ Khimji (supra) a suit for specific performance was filed. Interim reliefs of appointment of Court Receiver and injunction were refused by a single Judge of the High Court. The Appeal preferred before the Division Bench was dismissed as not maintainable on the ground E. that the impugned Order of the Single Judge was not a Judgment as contemplated by Clause 15 of the Letters Patent of the High Court. It was also held that Section 104 read with Order 43 Rule l only applied to appeals from Subordinate Courts to the High Court.

Thus in Shah Babula/ Khimji 's case (supra) this Court was concerned with an order passed by a single Judge on the original side of the High Court, which, if it amounted to a judgment, was admittedly appealable under Clause 15 of the Letters Patent. The only question, therefore, which arose before this Court was whether the order of the learned single Judge refusing to grant an

... injunction or appoint a receiver on the Interlocutory Application of the appellant was a judgment, and consequently whether an appeal against the order of the learned single Judge to the Division Bench of the High Court G

was competent and maintainable under Clause 15 of the Letters Patent. This Court took the view that the word 'judgment' in the Letters Patent should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. It was held that the word 'judgment' has H

252 SUPREME COURT REPORTS [2004] SUPP. S S.C.R.

A undoubtedly a concept of finality in a broader and not a narrower sense. Their Lordships came to the conclusion that the order passed by a single Judge on the original side refusing to appoint a receiver and grant an injunction amounted to a judgment and was therefore appealable under Clause 15 of the Letters Patent.

B Though the question did not directly arise for consideration, in the Judgment ofFazal Ali, J. there is a discussion on the interplay of Section 104 and Letters Patent. The relevant portions read as follows:

"15. We would first deal with the point relating to the applicability of Section 104 read with Order 43 Rule l of the Code of 1908 c because it seems to us that the arguments of Mr. Sorabjee on this score are we·ll-founded and must prevail. Moreover, some of the decisions of this Court, those of the Privy Council and other High Courts support the propositions adµmbrated by Mr. Sorabjee.

16Copy pinpoint16. In order, however, to appreciate the applicability of Section D l 04 read with Order 43 Rule l, it may be necessary to examine some important provisions of the Code of Civil Procedure as also the previous history which led to the enactment of Section l 04 ·by the Code of 1908. It appears that prior to the Code of 1908 in the earlier Code of Civil Procedure there were two kinds of appeals to the High E Court : ( l) appeals against judgments and decrees of the Trial Judge, and (2) appeals against orders, either interlocutory or quasi-final, passed by the court during the pendency of the suit or proceedings. In the Civil Procedure Code of 1877 the section corresponding to Order 43 Rule l of the Code of 1908 was Section 588 which provided for appealable orders under clauses (a) to (t). Section 588 of the Code F of 1877 provided that an appeal from any order specified in Section 588 shall lie to the High Court or when an appeal from any other order is allowed by the Chapter it would lie to the court to which an appeal would lie from the decree in the suit in respect of which such order was made or when such order is passed by a court other than the High Court, then to the High Court. A perusal of Sections 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Courts from the district courts in the mofussils or internal appeals to the High Courts under the Letters Patent. Section 591 clearly provided that except the orders mentioned in Section 588 no further appeal could lie from any H

P.S. SATHAPPANv. ANDHRA BANK LTD. [S.N. VARIAVA,J.] 253

order passed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus:

591. No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree. - Except as provided in this chapter, no appeal shall lie from any order passed by any court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

17Copy pinpoint17. In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute, therefore, did not contemplate any other appeal except those mentioned in Sections 588 and 591.

18Copy pinpoint18. The Code of 1877 was later on replaced by the Code of 1882 D but the provisions remained the same. In view of the rather vague and uncertain nature of the provisions of Sections 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of Section 588. The Bombay and Madras High Courts held that under Clause 15 of the Letters Patent of the said High E Courts, an appeal could lie only from orders passed under Section 588 and not even under the Letters Patent. In Sonba 'iv. Ahmedbha 'i Habibha'i (1872) 9 Born HCR 398 a Full Bench of the Bombay High Court held that under Clause 15 of the Letters Patent an appeal to the High Court from an interlocutory order made by one of the Judges lies only in those cases in which an appeal was allowed under the F Code of Civil Procedure, that is to say, under Section 588 and 591 of the Code of 1877. The Madras High Court in Rajgopal (In re LP.A. No. 8 of 1886 [ILR 9 Mad 447]) took the same view. Then came the decision of the Privy Council in the case of Hurrish Chunder Chowdry v. Kali Sundari Debia, IO IA 4 : ILR (1883) 9 Cal 482 G which while considering Section 588 made the following observations:

It only remains to observe that their Lordships do not think that Section 588 of Act X of 1877, which has the effect of restricting certain appeals is from one of the Judges of the Court to the Full Court. H

254 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A This judgment gave rise to a serious conflict of opinions in the High Courts in India. The High Courts of Calcutta, Bombay and Madras held that in view of the decision of the Privy Council in the aforesaid case, even though an order may not have been appealable under Section 588 it could be appealable provided it was a judgment within the meaning of Clause 15 of the Letters Patent of the respective B High Courts (Too/see Money Dassee v. Sudevi Dassee, ILR (1899) 26 Cal 361 Secretary of State v. Jehangir, (1902) 4 Born LR 342 Chappan v. Moidin Kutti, ILR (1899) 22 Mad 68)). However, the Allahabad High Court in Banno Bibi v. Mehdi Husain, ILR (1889) 11 All 375 held that if an order was not appealable under Sections 588 ·C and 591 of the Code of 1877 it could not be appealable against even under the Letters Patent of the High Court. This view was affirmed by a later decision of the same High Court in Muhammad Naim-ul- Lah Khan v. Ihsan-ul-Lah Khan ILR (1892) 14 All 226: 1892 AWN 14 (FB).

19Copy pinpoint19. With due respect we would like to point out that the pointed and terse observations of the Privy Council did not leave any room for any doubt or speculation in the matter. While construing Section 588, the Judicial Committee in Hurrish Chunder Chowdry's case [IO IA 4 : ILR (1883) 9 Cal 482] had made it clear that appeals would lie under Section 588 to the High Court and the section did not contain any restriction to the effect that appeal against the orders of the Trial Judge mentioned in Section 588 would not lie to a brger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that Section 588 did not affect nor was it inconsistent with the provisions ?f the Letters Patent and hence those orders of the Trial Judge which fell beyond Section 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of Clause 15 of the Letters Patent. Therefore, the views taken by the Calcutta, Bombay and Madras

G High Courts, referred to above, were undoubtedly correct. At any rate, since a fresh controversy had arisen, the legislature stepped in to settle the controversy by enacting the new Section I 04 in the Code .. of 1908. Section I 04 made it clear that appeals against orders mentioned in Order 43 Rule 1 were not in any way inconsistent with the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous orders passed by the Trial H Judge to a larger Bench. In other words, the legislature gave full

P.S. SATHAPPAN v. .ANDHRA BANK LTD. [S.N. VARIAVA,J.] 255 statutory effect to the views of the Calcutta, Bombay and Madras A High Courts. Even after the introduction of Section I 04, the conflict between the various High Courts still continued as to whether or not Section 104 would apply to internal appeals in the High Court. That is the question, which we shall now discuss."

(emphasis supplied). B The Court then went on to consider whether Section I 04 applied to internal appeals in the High Court. The Court considered various provisions to conclude that Section 104 applied even to internal appeals in the High Court. The entire discussion is lengthy and not relevant for our purposes. But during the course of that discussion at a number of places the interplay of Letters Patent C and Section 104 was considered. To that extent, the observations are relevant for our purpose and are accordingly set out:

"A bare perusal of this section would clearly reveal that excepting Revenue Courts all other civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of D procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in Section 4 is not applicable in the instant case because even if the Letters Patent of the E High Court be deemed to be a special law as contemplated by Section 4, the provisions of Section 104 do not seek to limit or affect the provisions of the Letters Patent."

28. We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case Section 104 read with Order 43 Rule I does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What Section I 04 read with Order 43 Rult I does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench."

"30. We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that Section 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now means the Division H

256 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that Section 588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not B at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of Section 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi, AIR: (1921) PC 80], their Lordships observed as follows: c Section (sic Clause) 15 of the Letters Patent is such a law, and what it expressly provides, namely an appeal to the High Court's appellate jurisdiction from a decree of th~ High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by Orders and Rules under the Code of Civil Procedure, D 1908, are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal.

31. Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that Order E 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India v. Mahindra Supply Co., [1962] 3 SCR 497 AIR (1962) SC 256, this Court made the following observations : - The intention of the legislature in enacting sub-section ( l) of Section l 04 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by Section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by Section 104(1) of the Code of Civil Procedure, 1908.

32. Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by the H Section 104( I) of the Code of 1908 and the decision therefore fully ..

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA, J.] 257

supports the argument of Mr. Sorabjee that there is no inconsistency A between the Letters Patent jurisdiction and Section l 04 read with Order 43- Rule l of the Code of 1908." Similarly, in Shankarlal Aggarwal 's case [ 1964] l SCR 717 : AIR ( 1965) SC 507 this Court while construing the provisions of Section 202 of the Indian Companies Act observed as follows : B There was no doubt either that most of the orders or decisions in winding up would not be comprehended within the class of appealable orders specified in Section 104 or Order 43, Rule l. If therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District C Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under Section l 04 and Order 43, Rule 1 and very few of the orders passed in the courts of the winding up would fall within these categories. On the other hand, the expression "judgment" used in Clause 15 is wider..... The learned Judge therefore rejected a construction D which would have meant that the same orders passed by District Courts and by a Single Judge of a High Court would be subject to different rules as to appealability.

33. There is yet another aspect of the matter which shows that Section _l 04 merely provides an additional or supplemental remedy E, by way of appeal and, therefore, widens rather than limits the original jurisdiction of the High Court. For instance, mthis very case with which this Court was dealing, an order passed under Section 202 of the Companies Act was appealable to a larger Bench and yet it was argued that the order being of an interlocutory nature would not be a judgment and therefore no appeal would lie to the Division Bench. F This contention was negatived by the Supreme Court and it was held that against the order passed by a Trial Judge under the Companies Act, an appeal would lie to the Division Bench. On a parity of reasoning, therefore, Section l 04 read with Order 43 Rule l expressly authorises and creates a forum for appeal against ordtrs falling under G various clauses of Order 43 Rule l, to a larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. There are a number of other Acts also which confer additional powers of appeal tg a larger Bench within the High Court against the order of a Trial Judge." H

258 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A It now remains to be shown why the case of Ram Sarup (supra) was overruled. The relevant portion reads as follows:

"38. The Lahore High Court relied on the decision of the Privy Council in Hurrish Chunder Chowdry's case 10 IA 4: ILR (1883) 9 Cal 482. The High Court further held that Sect; on 104 does not in any way take away the right of appeal conferred by the Letters Patent of the High Court but merely bars a second appeal from orders passed under Order 43 Rule 1 to Division Bench. A contrary view was taken by the Allahabad High Court in Ram Sarup v. Kaniz Ummehani, [ILR 1937 All 386 : AIR 1937 All 165] where the following observations were made : c It may, however, be conceded that this saving clause does not occur in sub-section (2) of Section 104. But under the corresponding Section 588 of the old Code, where the words were "orders passed in appeal under this section shall be final," their Lordships of the Privy Council in Hurrish Chunder Chowdry D v. Kali Sundari Debia, IO IA 4: ILR (1883) 9 Cal 482 observed that Section 588, which has the effect ofrestricting certain appeals, did not apply to a case where the appeal is from one of the Judges of the High Court to the Full Court .... In any case Section 104(2) does not contain ·any express provision which would suggest that the provisions of the Letters Patent have been abrogated. We accordingly hold that under Clause 10 of the Letters Patent an appeal lies from the order of a Single Judge passed in appeal.

39. With due deference to the Hon'ble Judges we are of the opinion that the decision of the Allahabad High Court on this point is based on a serious misconception of the legal position. It is true that Section 104 was introduced by the code 1908 and the aforesaid section, as we have already indicated clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once Section 104 applies and there is nothing in the Letters Patent to restrict the application of Section 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will lie to the Division Bench. Secondly, a perusal of H Clause 15 of the Letters Patent of the Presidency High Courts and

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA,J.] 259 identical ,clauses in other High Courts, discloses that there is nothing A -t to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthennore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that it is in cases of appeals decided by a Single Judge under Section 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant portion of Clause 15 of the Letters Patent may be extracted thus:

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment....of one Judge of the said High Court D or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the E Government of India Act, made (on or after the first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal. F

40. A perusal of the Letters Patent would clearly reveal two essential incidents ( 1) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High Court, and (2) that when the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal G shall only lie where the judge concerned declares it to be a fit one for appeal to a Division Bench. Thus the special law, viz, the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the respondent that if Order 43 Rule I applies, then a further appeal H

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A would also lie against the appellate order of the Trial Judge to a Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Patent extracted above, the contention of the respondent on this score must be overruled.

41. A further second appeal lying to a Division Bench from an B appellate order of the Trial Judge passed under Order 43 Rule l is wholly foreign to the scope and spirit of the Letters Patent. Unfortunately, however, the Allahabad High Court in Ram Sarup 's case ILR (1937) All 386: AIR (1937) All 165 refused to follow a Division Bench decision in Piare Lal v. Madan Lal, AIR (1917) All 325:ILR (1917) 39 All 191 and also tried to explain away the Full c Bench decision in Muhammad Naimul Khan case [ ILR (1892) 14 All 226: (1892) AWN 14 (FB)] where it is clearly pointed out that in such cases no further appeal would lie to the Division Bench under the Letters Patent. The distinction drawn by the Allahabad High Court regarding the application of Section l 04 is a distinction without any difference"

Much emphasis is sought to be put on the sentence, i.e. "Once Section I 04 applies and there is nothing in the Letters Patent to restrict the application of Section I 04 to the effect that even if one appeal will lie to the Single Judge, no further appeal will lie to the Division Bench" and it is submitted that the Court was laying down that a further appeal will not lie even if Letters Patent permitted. The sentence cannot be read in isolation. It must be read in the context of all that is stated before it. It is already held that Section 104 read with Order 43 Rule I C.P.C. confers additional powers of appeal to a larger Bench within the High Court. When read in context the sentence only means that in case of Orders not covered by Letters Patent a further appeal will not lie. This is also clear from the subsequent sentence that there is nothing else in Letters Patent which permits a further appeal barred by Section 104(2) C.P.C. As set out above, Section 104(2) only bars appeals against Order passed in appeal under the Section. Thus Section 104(2) does. not bar appeals permitted by any law in force. Also to be noted that principle in Ram Sarup 's case (supra), that Section l 04 did not bar a Letters Patent appeal was specifically accepted. It is also accepted that Letters Patent is a special law. However on the wordings of the concerned Letters Patent as noticed, it was held that the Letters Patent did not permit a second appeal. Had the Letters Patent permitted a second appeal, on the ratio laid down H ~arlier, a Letters Patent Appeal would have been held to be maintainable. In

P.S. SATHAPPANv. ANDHRABANKLTD. [S.N. VARIAVA,J.] 261 our case it is an admitted position that the concerned Letters Patent permits A an appeal.

It must also be mentioned that, as set out hereinabove, their Lordships considered the relevant portion of Clause 15 of the Letters Patent which has been extracted in the judgment, but unfortunately another relevant portion of Clause 15 has been missed. If Clause 15 of the Letters Patent of the Bombay B High Court is read in its entirety it leaves no manner of doubt that it provides for an appeal to the said High Court from the judgment of one Judge of the said High Court, subject to certain exceptions enumerated therein. The first part of Clause 15 contemplates two types of orders passed by a Single Judge of the High Court against which an appeal shall lie to the High Court First C an order of the Single Judge exercising Original Jurisdiction which amounted to judgment; and second, orders of a Single Judge of~he High Court exercising appellate jurisdiction subject to the orders specified, which were excepted, such as 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 Higli Court, or an order made in the exercise of revisional jurisdiction etc. etc. Clearly, therefore, Clause 15 of the Letters Patent contemplates an appeal against the judgment of a Single Judge of the High Court exercising appellate jurisdiction, provided the judgment appealed against is not one which was preferred against an appellate order, meaning thereby that no Letters Patent Appeal would lie against an order passed by a Single Judge in Second Appeal, or an order passed in revisional jurisdiction, The latter part of Clause 15, however, provides that an appeal shall lie to the High Court from a judgment of the Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal. Thus under Clause 15 a Letters Patent Appeal is competent even against an order passed by the High Court in Second Appeal provided the Judge deciding the case declares that the case is fit for appeal. In substance, therefore, Clause 15 of the Letters Patent of the Bombay High Court provided for an appeal - (1) against a judgment of a Single Judge of the High Court ; (2) against a judgment of a Single Judge of the High Court G exercising appellate jurisdiction, except in cases where the Single Judge is sitting in Second Appeal or where he exercises the revisional jurisdiction; and (3) judgment of the High Court even if passed in Second Appeal provided the Judge certifies it as fit for appeal to a Division Bench. Since the relevant portion of the Letters Patent was not extracted in the judgment, Their Lordships H

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A came to the conclusion set out above viz.:

"40. A perusal of the Letters Patent would clearly reveal that essential incidents - (I) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the sam_e High Court, and (2) that where the Trial Judge decides an appeal against a judgment or decree B passed by the district courts in the mofussil, a further appeal shall lie only where the judge concenied declares it to be a fit one for appeal to a Division Bench. Thus the special law, viz., the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the respondent that if Order 43 Rule I applies, then a further appeal would also lie c against the appellate order of the Trial Judge to a Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Patent extracted above, the contention of the respondent on this score must be overruled."

D We are of the opinion that in reaching this conclusion the Court missed the relevant portion of Clause 15 of the Letters Patent of the Bombay High · Court. Reliance cannot, therefore, be placed on this judgment for the proposition that under Clause 15 of the Letters Patent of the Bombay High Court no appeal to a Division Bench from the order of the Single Judge in exercise of appellate jurisdiction is maintainable. E Thus the unanimous view of all Courts till 1996 was that Section 104(1) C.P.C. specifically saved Letters Patent Appeals and the bar under 104(2) did not apply to Letters patent Appeals. The view has been that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate F Legislation. The express provision need not refer to or use the words "Letters Patent" but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred.

For the first time in the case of Resham Singh Pyara Singh v. Abdul G Sattar, reported in [ 1996] I SCC 49 a contrary view was adopted by a 2 judge bench of this Court. In this case there was an Appeal, before a Single Judge of the High Court, against an order of the City Civil Court granting an interim injunction. The question was whether a Letters Patent Appeal was maintainable against the order of the Single Judge. This Court, without '.•' considering any of the other previous authorities of this Court, without giving H any reasons whatsoever, did not follow the ratio laid down in Shah Babula/

P.S. SATHAPPANv. ANDHRABANK LTD. [S.N. VARIAVA, J.] 263

Khimji's case, (which was binding on it) held as follows: A "6. It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned Single Judge under Order 43 Rule l(r) as provided in sub-section (1) of Section 104 by operation of sub-section (2) of Section 104, no further appeal shall lie from any order passed in appeal under this B section. In Khimji case (1981] 4 sec 8 the suit was filed on the original side of the High Court and the learned Single Judge on the original side passed an interlocutory order. Against the orders of the learned Single Judge, though it was an interlocurory order, since the appeal would lie to the Division Bench under the Letters Patent, this C Court held that against the interlocutory orders passed by the Single Judge, Letters Patent Appeal would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case."

Then in the case of New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors., reported in [ 1997] 3 SCC 462 the question, whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo-order was passed by the trial Court. In Appeal, a single Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babula/ Khimji, (supra) and to the 2 Judge-Bench decision in the case of Resham Singh Pyara Singh, (supra). Shah Babula/ Khimji's case being a 3 Judge Bench decision would prevail over Resham Singh Pyara Singh 's case. It was also a binding decision on this Bench yet surprisingly the Court followed Reshari Singh Pyara Singh 's case. Of course the other decisions of this Court do not appear to have been brought to the attention of the Court. In this case it was also held that the concerned Order was not covered by Clause 10 of the Letters F Patent. The following observations make this clear:

"It would, thus, be seen that clause 10 of the Letters Patent consists of only two parts. In the first part, an appeal shall lie from a judgment of a learned Single Judge to the Division Bench not being a jcdgment passed in exercise of the appellate jurisdiction or revisional jurisdiction. G In other cases, where the learned Single Judge exercises the appellate jurisdiction, if he certifies that it is a fit case for an appeal to the Division Bench. Notwithstanding the prohibition contained in the latter part of clause I0, an appeal would lie." With greatest of respect to the learned Judges it must be mentioned that it has H

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A been omitted to be noticed that the concerned Letters Patent had three limbs as set out in Central Mine Planning & Design Institute Ltd. v. Union of India, reported in [2001) 2 SCC 588. In this case the three limbs have been noted. It is held as follows:

"8. A close reading of the provision, quoted above, shows that B it has three limbs : the first limb specifies the type of judgments of one Judge of the High Court which is appealable in that High Court and the categories of judgments/orders which are excluded from its ambit; the second limb provides that notwithstanding anything provided in the first limb, an appeal shall lie to that High Court from c the judgment of one Judge of the High Court or one Judge of any Division Court, pursuant to Section l 08 of the Government of India Act (now Article.225 of the Constitution of India), on or after 1-2- 1929 passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who D passed the judgment declares that the case is a fit one for appeai; and the third limb says that the right of appeal from other judgments of Judges of the said High Court or such Division Court shall be to "us, our heirs or successors., in our or their Privy Council, as hereinafter provided."

E Thus it is clear that the cases of Resham Singh Pyara Singh and New Kenilworth Hotel (P) Ltd lay down wrong law and are overruled.

It must now be noticed that even after the aforementioned two decisions this Court has continued to hold that a Letters Patent Appeal is not affected.

F In the case of Vinita M Khano/kar v. Pragna M Pai reported in [1998) l SCC 500 an Appeal had been filed against an Order passed under Section 6 of the Specific Relief Act. It was contended that such an Appeal was barred by sub-section (3). of Section 6 of the Specific Relief Act. This Court ag~eed that Section 6(3) of the Specific Relief Act barred such an Appeal but went on to consider whether Section 6(3) could bar a Letters Patent Appeal. In this context this Court held as follows:

"3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless

P.S. SATHAPPANv. ANDHRA BANK LTD. [S.N. VARIAVA,J.) 265 the statutory enactment concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned counsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to B Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed."

The question whether a Letters Patent Appeal was maintainable against the C Judgment/Order of a single Judge passed in a First Appeal under Section 140 of the Motor Vehicles Act was considered by this Court in the case of Chandra Kanta Sinha v. Oriental Insurance Co. Ltd., reported in [2001] 6 SCC 158. In this case, it was held that such an Appeal was maintainable. It is held that the decision of this Court in the case of New Kenilworth Hotel (P) Ltd., (supra) was inapplicable. D Thereafter in the case of Sharda Devi v. State of Bihar, reported in [2002] 3 SCC 705 the question again arose whether a Letters Patent Appeal was maintainable in view of Section 54 of the Land Acquisition Act. A three Judges Bench of this Court held that a Letters Patent was a Charter under which the High Courts were established and that by virtue of that Charter the E High Court got certain powers. It was held that when a Letters Patent grants to the High Court a power of Appeal, aga;nst a Judgment of a singh Judge, the right to entertain such an Appeal does not get excluded unless the statutory enactment excludes an Appeal under the Letters Patent. It was held that as Section 54 of the Land Acquisition Act did not bar a Letters Patent Appeal p such an Appeal was maintainable. At .this stage it must be clarified that during arguments, relying on the sentence "The powers given to a High Court under the Letters patent are akin to the constitutional powers of a High Court" in para 9 of this Judgment it had been suggested that a Letters Patent had the same status as the Constitution of India. In our view these observations merely lay down that the powers given to a High Court are the powers with G which that High Court is constituted. These observations do not put Letters Patent on par with the Constitution of India.

In the case of Subal Paul v. Maline Paul, reported in [2003] 10. SCC 361, the question was whether a Letters Patent Appeal was maintainable H

266 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A against an Order passed by a single Judge of the High Court in an Appeal under Section 299 of the Succession Act, 1925. It was held that an Appeal under Section 299 was permitted by virtue of Section 299 and not under Section 104 C.P.C. Section 299 of the Indian Succession Act, 1925 reads as follows:

B "299. Appeals from orders of District Judge. Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5of1908), applicable to appeals."

C Thus Section 299 permitted an Appeal to the High Court in accordance with the provision of CPC. That provision was Section 104. The Order pa5sed by the Single Judge was an Order under Section l 04. The further Appeal was under Letters Patent only. Section 299 of the Indian Succession Act did not permit it. The Letters Patent Appeal was saved/permitted by the words "any other law for the time being in force" in Section l 04( l ). It was thus held that Clause 15 of the Letters Patent permitted a right of Appeal against Order/ Judgment passed under any Act unless the same was expressly c.xcluded. It was held that the bar under Section 104 (2) would not apply ifan Appeafwas provided in any other law for the time being in force. Thus this authority also recognizes that an appeal permitted by "any other law for the time being in force" will not be hit by Section 104(2).

Thus, the consensus of;,judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (l) of Section l 04 CPC provides for an appeal from the orders enumerated under sub-section (I) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section {l) therefore contemplates three types of orders from which appeals are provided namely,

(l) orders enumerated in sub-section {l ). G (2) appeals otherwise expressly provided in the body of the Code and (3) appeals provided by any law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the H High Court is an appeal provided by a law for the time being in

P.S. SATHAPpAN v. ANDHRA BANK LTD. [S.N. VARIAV A, J.] 267

force.

As such an appeal is expressly saved by Section 104(1). Sub-clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it i~ clear that sub-clause B (2) can only apply to appeals not saved by sub-clause (I) of Section 104. The finality provided by sub-clause (2) only attaches to Orc.'.ers passed in Appeal under Section 104, i.e., those Orders against which an Appeal under "any other law for the time being in force" is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative C intent of introducing Section 4 C.P.C. and the words "by any law for the time being in force" in Section 104( 1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under "any other law for the time being in force" undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude D . what is specifically saved in sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section I 04( I) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that E Section 4 of the Civil Procedure Code provides as follows:

"4. Savings.- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherWise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under· any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."

As stated hereinabove, a specific exclusion may be clear from the words of a statue even though no specific reference is made to Letters Patent. But H

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A where there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "Order will be final" are not sufficient. In such cases, i.e., where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section B lOOA. The present Section IOOA was amended in 2002. The earlier Section IOOA, introduced in 1976, reads as follows:

"1 OOA. No further appeal in certain cases. - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time c being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."

It is thus to be seen that when the Legislature wanted to exclude a Letters D Patent Appeal it specifically did so. The words used in Section 1OOA are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exdusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, .Section 1OOA reads as follows:

"JOOA. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."

To be noted, that here again the Legislature has provided for a specific exclusion. It mtlst be stated that now by virtue of Section lOOA no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section I OOA nor Section 104(2) barred a Letters Patent Appeal.

Applying the above principle to the facts of this case, the appeal under .., H

P.S. SATHAPPAN v. ANDHRA BANK LTD. [S.N. VARIAVA, J.] 269

Clause 15 of the Letters Patent Is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law.

It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar 's case (supra) and Sharda Devi's case a Letters Patent is the Charter of the High Court. As held in Shah Babula/ Khimji's, case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a E general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but ifthere was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure F, Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section l OOA.