Asa Singh Kochhar and Another vs Darshan Singh Kochhar and Others

R.S. Pathak, C.J.—In a suit pending before him in the ordinary original civil jurisdiction of this Court, our brother C.R. Thakur has refused to grant an interim injunction and has also declined to appoint a receiver during the pendency of the suit. The present appeals are directed against those orders. The question is whether the appeals lie.

The State of Himachal Pradesh Act, 1970, which constituted this Court, gave to the court jurisdiction and to its Judges the powers and applied the practice and procedure which obtained in the High Court of Delhi. In all those matters--and that is the common case of the parties--the relevant provisions of the Delhi High Court Act, 1966, must be consulted.

By virtue of Section 7 of the Delhi High Court Act the High Court of Delhi has made rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction. Relying on Rule 19 of the Delhi High Court (Original Side) Rules, 1967, made u/s 7 of the Delhi High Court Act, the Appellants say that the appeals lie by virtue of Section 104 read with Clauses (r) and (s) of Rule 1 of Order 43 of the Code of Civil Procedure. The forum for the appeals, it is said, is provided by Section 10(1) of the Act.

Before the High Court of Delhi was constituted by the Act of that name in 1966, the High Court of Punjab exercised jurisdiction over the Union territory of Delhi. The High Court of Punjab was governed by the Letters Patent of the High Court of Judicature at Lahore (hereinafter referred to as the Letters Patent). On the constitution of the High Court of Delhi, the law in force with respect to the practice and procedure and in regard to the powers of the Judges in the High Court of Punjab was made applicable to the High Court of Delhi by Section 7 and Section 10(2) of the Delhi High Court Act. The High Court of Punjab was vested by clause 9 of the Letters Patent with extraordinary original civil jurisdiction, and that was in the same terms vested in the High Court of Delhi by Section 5(1) of the Act. Additionally, the High Court of Delhi was vested with ordinary original civil jurisdiction in suits above a specified value. That was effected by Section 5(2) of the Act. It was a new provision, not to be found in the Letters Patent and not enjoyed by the High Court of Punjab. It was, therefore, necessary to provide a specific provision for appeal in respect of such suits, and provision was made accordingly by Section 10(1) of the Act. At this point, it will be appropriate to set out the provisions of Section 10:

Power of Judges:--(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by Sub-section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of Sub-section (1), the law n force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.

It appears proper to consider first the scope of Section 10(2). A comparison of that provision with the Clauses of the Letters Patent indicates that when it refers to the powers of the Judges and Division Courts it must be taken to include all those provisions which are contained in Clause 10 of the Letters Patent. There is no other provision in the Delhi High Court Act, which can be said to correspond to Clause 10 of the Letters Patent. Section 5 of the Act speaks of the appellate jurisdiction of the High Court, but that refers to the appellate jurisdiction of the High Court as a High Court and does not deal with intra-court appeals. The intra-court appeals dealt with by Clause 10 of the Letters Patent are provided, in relation to cases within the Delhi High Court, by Section 10(2) of the Delhi High Court Act. On that construction, it seems to me, on a fair reading of Section 10, that the two sub-sections of Section 10 deal with allied matters. While Sub-section (1) deals with the appeals arising out of the exercise of the ordinary original civil jurisdiction of the High Court, Sub-section (2) deals with appeals arising out of the exercise of the extraordinary original civil jurisdiction as well as the other appeals contemplated by Clause 10 of the Letters Patent. Now, Clause 10 of the Letters Patent, it cannot be disputed, creates a right of appeal from the judgment of a single Judge exercising extraordinary original civil jurisdiction and also specifies the forum for such appeals. It deals with both matters, the right of appeal as well as the forum for such appeals. There is every reason to hold that the same pattern is woven in the provision of Section 10(1), which relates to the newly created ordinary original civil jurisdiction. Section 10(1) must also be taken to provide (a) a right of appeal from the judgment of a single Judge of the High Court, and (b) that the forum of such appeal is a Division Court of the High Court.

But even if it is said that Clause 10 of the Letters Patent is not reflected in Section 10(2) of the Delhi High Court Act, and the latter is concerned only with what is mentioned in Clause 26 of the Letters Patent, and provisions akin to Clause 10 of the Letters Patent are to be found elsewhere in the Act, the question will still remain, the argument of the Appellants being accepted that Section 10(1) of the Act provides the forum of appeal only, whether the right of appeal from the judgment of a single Judge in the exercise of ordinary original civil jurisdiction can be discovered anywhere else in the Act. Reliance has been placed on Rule 19 of the Delhi High Court (Original Side) Rules, 1967. It provides that the provisions of the CPC shall apply to all proceedings on the original side. It is urged that, therefore, a right of appeal lies by virtue of Section 104 read with Order 43 Rule 1 of the Code. Before that contention can be accepted it is necessary to enquire whether Rule 19 can be so construed. The rules were made, it is said, by virtue of Sections 122 and 129 of the Code and Section 7 of the Delhi High Court Act. Now the Code of Civil Procedure, it is well recognised, contains not only provisions of procedural law but also provisions of substantive law. Sections 96, 100 and 104, which provide for appeals, have been generally regarded as provisions of substantive law in the Code. That is evident from the view taken by the courts of Section 141 of the Code which declares that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to all proceedings in courts of civil jurisdiction. It has been held that inasmuch as Section 141 applies only the procedure provided in the Code, it is not open to a party on the basis of Section 141, to invoke the provisions of the Code creating substantive rights. In Venkata Reddi and Ors. v. Ventrapragada Ramabrahmam and Anr. AIR 1953 Mad. 417, the Madras High Court held that Section 141 of the Code did not entitle a party to a right of appeal under Order 43 Rule 1 of the Code. In Smt. Bhagwanti v. New Bank of India Ltd. AIR 1950 E.P. 111, Harnam Singh J. of the East Punjab High Court said:

Section 141...deals with procedure and procedure alone. It does not confer any substantive right not expressly given elsewhere by the Code and the application of provisions of the CPC dealing with substantive rights cannot be claimed merely on the strength of Section 141.

In Kalookhan Fazledin Vs. Surji Vallabhdas, , Rajadhyaksha J. of the Bombay High Court took the view that as Section 141 of the Code only laid down that the procedure in regard to a suit may be followed, a right of appeal could not be claimed merely because of Section 141. In District Judge Hoshangabad v. Seth Shri Kisan Das and Ors. AIR 1942 Nag, a Division Bench of the Nagpur High Court, taking the view that the power of reference conferred by the Code was not a matter of procedure, repelled a plea that such power could be availed of by virtue of Section 141. Mudholkar J. of the same High Court observed in Sita Ram Khandu v. Bapurao Mukandrao AIR 1953 Nag. 153 , that as Order 9 Rule 8 of the Code enacted a rule of substantive law, it could not be invoked merely because of Section 141 of the Code inasmuch as Section 141 applied only the procedural part of the provisions of the Code. Proceeding on the same reasoning, Harries C.J. of the Calcutta High Court affirmed in Birendra Nath Biswas Vs. Monorama Devi and Others, :

It is to be observed that Section 141 speaks of procedure. What is made applicable to all proceedings in a Court of civil jurisdiction is the procedure provided in the Code with regard to suits. Now, a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and therefore Courts have held that though Order 9, Rule 9 is made applicable to applications other than suits no appeal would lie from a dismissal of such an application under Order 43, Rule 1.

Applying the principle to Sections 122 and 129 of the Code, it would appear that the power conferred on the High Courts by those provisions is confined to the making of procedural rules only and not to rules creating substantive rights, of which the right of appeal is one. It will be noticed that both Sections 122 and 129 of the Code speak of rules regulating the procedure only of the High Court. It will also appear from the Scheme of Part X of the Code, in which Sections 122 and 129 find place, that the rules made by the High Courts may annul, alter or add to the rules contained in the First Schedule. But nothing in Part X enables the High Courts to make rules annulling, altering or adding to the Sections of the Code. The right of appeal, it will be noticed, is contained in the sections of the Code.

The next question is whether Section 7 of the Delhi High Court Act enables the High Court to make rules providing for the right of appeal. Section 7 provides:

Practice and procedure in the High Court of Delhi.--Subject to the provisions of this Act...the High Court of Delhi...shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction....

The language of the provision will immediately make it clear that the power to make rules relates to practice and procedure involved in the exercise by the High Court of its ordinary original civil jurisdiction. It is the original jurisdiction respecting which the practice and procedure is to be provided for; the creation of an appellate jurisdiction is not referred to here. The expression "practice and procedure" does not extend to the making of rules and orders providing for appeals.

In Watson v. Petts (1899) 1 Q.B. 54 C.A. while considering Section 1(4) of the Judicature (Procedure) Act, 1894 which provided that in matters of "practice and procedure" every appeal from a Judge should be to the Court of Appeal, it was observed that an appeal is not embraced in the words "practice and procedure". And in Re Merchant (1908) 1 K.B. 998 C.A. Vaughan Williams L.J. pointed out "generally speaking, a matter of practice and procedure arises in the course of an action". Lord Westbury in Attorney General v. Sillem (1864) 10 H.L.C. 704, while referring to the observations of Lush L.J. in Boyser v. Minors (1880) 7 Q.B.D. 329 that "practice" and "procedure" were convertible terms, declared that practice in its ordinary sense of the word denoted "the rules that make or guide the curses curiae, and regulate the proceedings in a cause within the walls or limits of the Court itself". It was held that when Section 26 of the Queen''s Remembrance Act, 1859, enabled the Barons of the Exchequer to frame rules for making "the process, practice and mode of pleading" on the Revenue side of the Court uniform with that on the plea side, it did not give those learned Judges the power they assumed to exercise of giving an appeal in Revenue cases. So also in Printing Industry Employees'' Union of Australia v. Victorian Chamber of Manufacturers (1947) 73 C.L.R. 259, Latham, C.J. speaking for the High Court of Australia understood the words "practice and procedure of the Court" in Section 43(1) of the Commonwealth Conciliation and Arbitration Act to refer to "general rules or regulations to be applied in and by the court when the court is discharging its functions".

In my opinion when Section 7 of the Delhi High Court Act empowers that court to make rules relating to practice and procedure for the exercise of its ordinary original civil jurisdiction, it refers to those rules which govern its practice and procedure when it is exercising original civil jurisdiction. It does not extend to rules creating a right of appeal. Rule 19 of the Delhi Court (Original Side) Rules, 1967, should be construed accordingly.

It is also urged by the Appellants that irrespective of Rule 19 of the Delhi High Court (Original Side) Rules all the provisions of the Code of Civil Procedure, without anything more, apply to the High Court on its original side and, therefore, Sections 96 and 104 of the Code can be availed of for appealing from the decree or order of a single Judge of the High Court to a Division Court of that court. I have considered the matter carefully, and I find it difficult to accept the contention. To my mind, Sections 96 and 104 of the Code refer to appeals from decrees and orders made by a court of inferior jurisdiction to a court of superior jurisdiction. The sections do not deal with intra-court appeals.

Section 104 of the Code of Civil Procedure, 1908, corresponds to Section 588(2) of the CPC of 1877. In respect of Section 588 of the Code of 1877, the Privy Council said in Hurrish Chunder Chowdry v. Kali Sundari Debia L.R. 10 I.A. 4:

...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.

In Toolsee Money Dasee v. Sudevi Dassee ILR Cal. 361 a Full Bench of the Calcutta High Court accepted the contention that a Judge exercising the original civil jurisdiction of the High Court was not subordinate to the High Court, that he was "the High Court" itself, and that no appeal lay under the CPC from a decree or order of the High Court in the exercise of its original civil jurisdiction; that if the appeal lay at all, it was by virtue of Clause 15 of the Letters Patent governing the Calcutta High Court. In the five Judge Full Bench of the Bombay High Court in Bhuta Jayatsing Vs. Lakadu Dhansing, , Scott, C.J. observed that Section 98, like Section 104 read with Order 43 Rule 1 of the Code, must be taken to apply to appeals from courts of inferior jurisdiction to the High Court and not to appeals from one or more Judges of the High Court. Macleod, J. comparing the provisions of Clause 15 of the Letters Patent (Bombay) with Section 96 of the Code held that Section 96 of the Code did not deal with appeals under Clause 15 of the Letters Patent. Hayward, J. held that the appellate civil jurisdiction of the High Court over the other Judges of the High Court arises entirely out of the Letters Patent, while the appellate civil jurisdiction over the civil courts of the Mofussil subject to the High Court was derived from the provisions of the Code of Civil Procedure. The natural place, he said, to find the provisions governing the exercise of the appellate jurisdiction over the other Judges of the High Court would be the Letters Patent, while the natural place to find the rules governing the exercise of the appellate civil jurisdiction over the civil courts of the Mofussil subject to the High Court would be the Code of Civil Procedure.

In Debendra Nath Das v. Bibudhandra Mansingh I.L.R.Cal. 90, Sir Lawrence Jenkins, C.J. said:

...the Code makes no provision for an appeal within he High Court, that is to say, from a single Judge of the High Court. This right of appeal depends on Clause 15 of the Charter.

A full Bench of the Nagpur High Court in AIR 1940 39 (Nagpur) declared that the CPC did not make provision for the appellate jurisdiction of the High Court in respect of the judgment passed by a single Judge of that court, and that the right of appeal from a decree of a single Judge was not governed by Sections 96, 100 and 104 of the Code but by Clause 10 of the Letters Patent. Reference was made to Debendra Nath Das (surpa), Sabhapathi Chetty v. Narayanasami Chetty ILR Mad. 555 and Behram Jung v. Sultan Ali Shustry ILR 37 Bom. 572 . That was also the view taken by a Division Bench of the Allahabad High Court in Vishnu Pratap and Others Vs. Sm. Revati Devi and Others, , where it was observed:

We are not satisfied that Section 104 or Order 43 ever intended to deal with appeals from a Judge or Judges of one Court to a larger number of Judges in the same Court. It is no doubt true, as has been held by their Lordships of the Judicial Committee in-Mt. Sabitri Thakurain v. Savi AIR 1921 P.C. 80 that Section 104 as well as Order 43 apply to High Courts but it does not mean that they give any right to an appeal from an order by a Judge or Judges of that Court to a larger number of Judges of the same court independently of the Letters Patent of the Court.

To the same effect is the view taken by a Division Bench of the Bombay High Court in J.K. Chemicals Ltd. Vs. Kreba and Co. Ltd. and Others, It will be remembered that the Letters Patent constituting the High Court of Judicature at Lahore, as in the case of similar other Letters Patent granted after the Code of Civil Procedure, 1908 had already been enacted, contained express provisions which provided for a right of appeal from the judgment of a single Judge of the High Court to a Division Court of that Court. That provision would not have been necessary if the relevant provisions for appeals in the CPC provided for such appeals. Appropriate provision was made in the Letters Patent only because it was considered that the CPC did not contain such provision. The Appellants rely on The Union of India (UOI) Vs. Mohindra Supply Company, in support of the proposition that Section 104 read with Order 43 Rule 1 of the Code provides for intra-court appeals. Our attention has been drawn to certain observations of Shah, J. who delivered the judgment of the Court. A reading of the judgment, however, indicates that the observations were made in relation to Section 39(1) of the Arbitration Act. The learned Judge referred to Hurrish Chunder Chowdry (supra) and thereafter went on to point out that because of the cleavage of opinion in the High Courts in India on the question whether a right of appeal under the Letters Patent could be availed of only if such right was also conferred by Section 104 of the Code, it became necessary to amend Section 4 of the Code in order to provide that nothing in the Code should be deemed to limit or otherwise affect any special or local law in force, or any special jurisdiction or power conferred, or any special forum of procedure prescribed by or under any other law for the time being in force. Reference was also made to the clause of exception included in Section 104(1) of the Code which provided in favour of the continued operation of any other law providing for an appeal against orders not specifically mentioned in Section 104. The point before the Supreme Court in that case was whether Section 39(2) of the Abrbitration Act, which prohibited a second appeal from an order passed in appeal u/s 39(1), included a further appeal under Clause 10 of the Letters Patent against the order of a single Judge disposing of an appeal u/s 39(1) of the Arbitration Act. It does not appear that when referring to Hurrish Chunder Chowdry (supra) the Supreme Court expressly dissented from the view taken by the Privy Council that the Code did not contemplate an appeal from one of the Judges of the Court to the Full Court. I am unable to read the observations of the Supreme Court in that case as laying down that Section 104 read with Order 43 Rule 1 of the Code includes intra-court appeals and is not confined to appeals from a court of inferior jurisdiction to a court of superior jurisdiction.

Our attention has been invited to Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, and Shri Durga Prasad and Another Vs. The Banaras Bank Limited, . In those cases the Supreme Court was called upon to consider the expression "court immediately below" in Article 133(1) of the Constitution. The view taken there cannot, it seems to me, assist the Appellants on the point raised before us. In the present case we must have regard to the scheme separately contained in the letters patent and the Code of Civil Procedure; and an opinion expressed on the language of Article 133(1) of the Constitution does not proceed on an examination of that scheme.

Accordingly, I am of the view that an appeal from the judgment of a single Judge of the High Court to a Division Court of that High Court cannot be sustained on the basis of Section 96 or Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure. So far as the High Court of Delhi, and therefore this Court, are concerned, the right to such appeal must be discovered from the statutes constituting them. It has been pointed out above that the right of appeal cannot be referred to Section 5 or Section 7 of the Delhi High Court Act. The only provision which can conceivably provide for such a right is Section 10(1) of the Act. This reinforces the conclusion that Section 10(1) of the Act deals with both matters, the creation of a right of appeal from the judgment of a single Judge of the High Court and the forum for such appeal, that is, a Division Bench of the High Court.

It is urged on behalf of the Appellants that on the view that the orders mentioned in Section 104 and Order 43 Rule 1 of the Code made by a single Judge of this Court are not appealable to a Division Bench of the Court, no relief against an erroneous order is possible because if an appeal is taken to the Supreme Court it will be barred by Article 133 of the Constitution, which does not permit an appeal from a judgment, decree or a final order of a single Judge. It is further pointed out that some of the orders mentioned in Section 104 and Order 43 Rule 1 of the Code cannot be described as final orders and, therefore, also no appeal will lie to the Supreme Court under Article 133. For the Respondents it is pointed out that Article 136 of the Constitution provides an answer to that contention. To my mind, whatever the position in that regard may be, the absence of a provision for relief against an erroneous order of a single Judge of the High Court cannot provide justification for so construing the jurisdiction of the High Court as to provide for such relief, where on its plain terms the jurisdiction vested in the High Court does not contemplate the grant of such relief.

In that view of the matter, the only point which reimains to be considered is whether an order refusing to grant an interm injunction or an order refusing to appoint a receiver during the pendency of a suit is appealable u/s 10(1) of the Delhi High Court Act. Section 10(1) provides an appeal from the "judgment" of a single Judge. It seems that having regard to the parallel nature of the provisions relating to an appeal from a Judgment in the exercise of ordinary original civil jurisdiction and an appeal from a judgment in the exercise of extraordinary original civil jurisdiction, the meaning of the expression "judgment" in Section 10(1) of the Delhi High Court Court Act should be taken to be the same as the meaning of that expression in the Letters Patent. The expression "judgment" in Clause 10 of the Letters Patent means a decision which affects the merits of the question between the parties determining some right or liability. It could be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined 17 W.R. 364. This definition of the expression "judgment" has received the approval of the Supreme Court in Shanti Kumar Canji v. The Home Insurance Co. Mew York . A.I.R.24 1974 S.C. 1719 , where reference was also made to the observations of the Supreme Court in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, It may be taken as the sellted law now that in order to amount to a "judgment" within the meaning of Clause 10 of the Letters Patent, it must be a decree disposing of a suit or an order which has the effect of determining any rights in controversy between the parties. That, to my mind, must also be the meaning to be attributed to the expression "judgment" in Section 10(1) of the Delhi High Court Act.

It is contended by the Appellants that the expression "judgment" in Section 10(1) of the Act must be taken to mean what it does in the Code of Civil Procedure. Now, when regard is had to the Code it will be noticed that an appeal lies against a decree and certain orders only. No appeal lies against a "judgment" as defined by the Code. The expression "judgment" in the Code is defined in Section 2(9) as "the statement given by the Judge of the grounds of a decree or order". A "decree" is defined by Section 2(2) as "the formal expression of adjudication, which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit....". An "order" is defined by Section 2(14) of the Code to mean "the formal expression of any decision of a civil court which is not a decree". I find it difficult to hold that the expression "judgment" in Section 10(1) of the Act must take its meaning from the definition set out in the Code.

Now an order refusing to grant an interim injunction or refusing to appoint a receiver during the pendency of a suit cannot be said to determine any rights in controversy in the suit between the parties. Several courts have taken that view, among them being, the Nagpur High Court in AIR 1947 159 (Nagpur) the Allahabad High Court in Vishnu Pratap v. Sm. Revati Devi (supra), the Bombay High Court in Salemahomed Haji Haroon Kably Vs. Mahomed Taher Jaffrani, and Narayandas S. Kanuga Vs. Sarasvatibai D. Joshi and Another, The jurisdiction conferred on the court to grant an interim injunction or to appoint a receiver during the pendency of the suit is conferred for the purpose that the court is in a position to render an effective decision when disposing of the suit. The rights in controversy between the parties in the suit are not determined by the exercise of that jurisdiction.

In support of their contentions the Appellants have placed reliance on University of Delhi and Ors. v. Hafiz Mohd. Said and Ors. A.I.R 1972 Del 102. That decision was rendered by learned Judges eminent for their scholarship and entitled to the highest respect. Therefore, it is with all the greater regret that I find myself unable to share their views. The compulsion of the considerations mentioned above persuades me to a different decision.

I am of opinion that the present appeals do not lie and on that ground must be dismissed.

In the circumstances it is not necessary to express myself on the points of controversy in these appeals between the parties.

Before parting with these appeals, a few observations would be appropriate. In the course of the exercise of original civil jurisdiction, it becomes necessary for a learned single Judge of this Court to entertain applications of an interlocutory nature. Some of those applications pray for important reliefs and are disposed of by orders with serious consequences to one party or the other. Not infrequently the original civil proceeding, in which the orders are made, may require appreciable time for trial. The interests of justice require that the validity of such interlocutory orders should be open to appeal in a convenient forum, a right of appeal being provided as in Section 104 and Order 43 Rule 1 of the Code of Civil Procedure, and a convenient forum being a Division Court of the High Court. It is a matter for consideration whether appropriate legislation should not be enacted.

The appeals are dismissed, but in the circumstances there is no order as to costs.

D. B. Lal, J.—This appeal is directed against the judgment of a learned single Judge of this Court disposing of two miscellaneous petitions-- one for injunction under Order XXXIX Rules 1 and 2 read with Section 151 and the other for appointment of a Receiver under Order XL Rule 1 read with Section 151 of the Code of Civil Procedure. The Plaintiff-Appellants claim to be owners of one-half share in three properties known as Willow Bank Estate, Willow Bank Cottage and Craig''s Villa, all situated in Simla. The case set out by the Plaintiffs in their plaint as well as the defence taken up by the Defendants in their written statement have been faithfully elaborated by the learned single Judge. I shall, therefore, confine myself to giving only salient features.

One Arthur Henry Pook was the previous owner of these properties. He died leaving 1/4th of the estate to his brother Leonard Pook. After the death of Leonard Pook the property fell to the share of his children. After the death of A.H. Pook it appears that Administrator was appointed to look after his properties. At one stage on 5-6-1946 Manohar Singh Kochhar-- Defendant No. 8 being Official Receiver was appointed interim Administrator. The two Plaintiffs as well as Darshan Singh Kochhar Defendant No. 1 are the brothers of Manohar Singh Kochhar. The Defendant No. 2 Smt. Veeranwali is the wife of Darshan Singh Kochhar while Satwant Singh Kochhar Defendant No. 3 is their son. The Defendants 4 to 6 are the successors of Satwant Singh Kochhar. In this manner, Defendants 1 to 6 are on one side of the litigation. The Defendants 9 and 10 arc the wives of the Plaintiffs. Smt. Dhian Kaur--Defendant No. 11 is the wife of Manohar Singh Kochhar. In this manner the two Plaintiffs and the Defendants 8 to 11 are on the other side of the litigation. It appears Manohar Singh Kochhar suggested to his brothers that 1/4th share in the three properties should be purchased by them. The Plaintiffs'' case is that they pooled their resources and fixed Deposit Receipts belonging to all these family members were pledged with the Punjab National Bank and a cheque of Rs. 1,54,850/- was obtained by Asa Singh Kochhar--Plaintiff No. 1 on 22-9-1949. It was drawn in favour of Grindley''s Bank Simla who were the solicitors of the vendors. The heirs of Leonard Pook were willing to sell 1/4th share at a cost of Rs. 2,01,850/-and as such the remining sum of Rs. 53,000/- was given by the Defendant No. 11. In this manner the total amount for one-fourth share was paid and sale deed was obtained in the name of Smt. Veeranwali Defendant No. 2 which was Benami on 7-11-1947. Subsequently Smt. Veeranwali wanted to be appointed Administrator of the property in place of one Hotz. The matter went up to the High Court and Letters Patent Appeal was filed in 1948. However, subsequently one Ganpati Iyer was appointed Administrator. The three properties were under tenants and rents were accumulated by Ganpati Iyer on behalf of the Plaintiffs and Defendants. The remaining three-fourth share was also put to auction by the Administrator and on 13-11-1958 three-fourth share of Willow Bank Estate and Willow Bank Cottage was purchased in the name of Smt. Veeranwali Defendant No. 2. The remaining three-fourth share in Craig''s Villa was similarly put to auction and was purchased in the name of Satwant Singh Kochhar on 27-11-1958. The consideration of the two sale deeds was paid out of the accumulations belonging to Kochhars and which were available in the account of the Administrator. The Plaintiffs'' case is that the Defendant No. 7, namely, Jai Singh was appointed the Manager of the properties. He was looking after their right from 1947 uptil 1973.

In 1968-69 some dispute arose in the family. Two suits were filed by the Defendants 9 to 11 which were Suit No. 12 of 1969 and Suit No. 13 of 1970. The first related to Willow Bank Estate and Willow Bank Cottage while the second related to Craig''s Villa. An application under Order XXXIX Rule 1 and Order XL Rule 1 of the CPC was filed in civil suit No. 12 of 1969. However, these applications were not pursued till the two suits were withdrawn in 1973 as a result to some compromise. Similarly several suits were filed at Delhi by the Defendants 1 to 6 against the Plaintiffs whom they considered tenants or licensees in the properties. These suits were also subsequently withdrawn. In the beginning of 1974 again a dispute arose amongst the family members. The Plaintiffs sent telegrams to the Defendant No. 7 that he should hand over the account books. The Defendants 1 to 6 took exception and even filed police reports. The room of Defendant No. 7 was broken open and the account books were taken away by the Defendants 1 to 6. Thereafter the present suit was filed on 11-4-1974 and the reliefs claimed in the present suit are; a decree for partition of the properties giving one-fourth share to each of the branch of four brothers, a decree for rendition of account by the Defendants 1 to 6 and also by the Defendants No. 7 so that the Plaintiffs could know as to what was due and payable to them, a decree for permanent injunction restraining the Defendants No. 1 to 6 from creating any encumbrance upon or from transferring any property. Besides the above noted three reliefs a separate relief for the appointment of a Receiver is also claimed for the properties--Willow Bank Estate and Craig''s Villa--which are in possession of tenants.

The defence is one of denial and it is asserted that Smt. Veeranwali Defendant No. 2 and Satwant Singh Kochhar Defendant No. 3 are the exclusive owners of the three properties. Subsequently Satwant Singh Kochhar has transferred the property in favour of the Defendants 4 to 6. It was denied that the three sale deeds were Benami in character. The consideration was entirely paid by Smt. Veeranwali and Satwant Singh Kochhar. In respect of the cheque of Rs. 1,54,850/- dated 22-9-1947 drawn upon the Punjab National Bank and transferred to the Grindley''s Bank Simla, it is set out in defence that the entire money belonged to Darshan Singh Kochhar and Satwant Singh Kochhar. In fact they brought the money and wanted a cheque from. Grindley''s Bank. As there was rush in the Bank and time was short, the money could not be counted. Asa Singh Kochhar had also arrived with the Fixed Deposit Receipts and he wanted a cheque of Rs. 1,48,850/-from the Punjab National Bank and again the difficulty regarding counting of money was present due to rush at that Bank. It was so arranged that against Fixed Deposit Receipts Asa Singh Kochhar will obtain the cheque of Rs. 1,48,850/- and take the money belonging to Darshan Singh Kochhar and Satwant Singh Kochhar. Rs. 6,000/- were more paid by Darshan Singh Kochhar and Satwant Singh Kochhar and Asa Singh Kochhar got the cheque of Rs. 1,54,850/-from the Bank which was drawn in favour of Grindley''s Bank. Thus the cheque although in fact existed in the name of Asa Singh Kochhar yet the consideration came from Darshan Singh Kochhar and Satwant Singh Kochhar. That was the story set out in the written statement. Since one-fourth share of the three properties belonged to Smt. Veeranwali Defendant No. 2 the subsequent purchase of three-fourth share in these properties was also made by her and her son Satwant Singh Kochhar from the accumulations of rent in respect of the former one-fourth share said to be lying with the Administrator. Thus the Defendants 1 to 6 claimed exclusive title for the three properties.

It was further asserted on behalf of Defendants 1 to 6 that the Defendant No. 7 was loyal to them till 1973 but thereafter he joined hands with the Plaintiffs and even embezzled a sum of Rs. 2,500/-. As such he was turned out from service. Now the Plaintiffs have made him a party to give a statement in their favour.

The learned single Judge held that a prima facie case was made out in favour of the Plaintiffs. However, he held that the interim reliefs of injunction and receiver could not be granted because neither irreparable damage to property was proved nor balance of convenience existed in favour of granting such reliefs. Accordingly he has dismissed the two petitions. The Plaintiffs have now preferred this Letters Patent appeal.

A preliminary objection has been taken by the Defendants that the appeal is not maintainable. It is convenient to come straight to that plea. It is contended that the decision of the learned single Judge will not amount to "judgment" within the meaning of Section 10 of the Delhi High Court Act, 1966. The Plaintiffs, according to Defendants, cannot rely on Section 104 or Order XLIII Rule 1 of the CPC because these provisions will not confer jurisdiction for appeal before a Division Bench against the order of the learned single Judge. Reliance was placed on Section 4 of the CPC which left unaffected any special law or special jurisdiction conferred upon High Court u/s 10 of the Delhi High Court Act, 1966. On the other hand the contention on behalf of the plain tiffs was, that the expression "judgment" used in Section 10 of the Delhi High Court Act, 1966, necessarily refers to "judgment" as enumerated in the Code of Civil Procedure, 1908. Whatever is "judgment" or "order" under the Code will have to be taken regard of for appeal u/s 10. In other words it was pleaded that appealable orders u/s 10 are only those which are referred to in Section 104 and Order XLIII Rule 1 of the Code of Civil Procedure.

For sake of elucidation the statutory provisions in the Code of Civil Procedure, 1908, and the Delhi High Court Act, 1966, may be set out in detail:

Code of Civil Procedure, 1908

Section 4(1) : Savings 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.

For sake of elucidation the statutory provisions in the Code of Civil Procedure, 1908, and the Delhi High Court Act, 1966, may be set out in detail:

CODE OF CIVIL PROCEDURE, 1908

Section 4(1) : Savings 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. Section 104(1): An appeal shall lie from the following orders, Orders from which and save as otherwise expressly provided in appeal lies. the body of this Code or by any law for the time being in force, from no other orders: XX XX XX XX (i) any order made under rules from which an appeal is expressly allowed by rules: Section 106: What Where an appeal from any order is allowed Courts to Hear Ap- it shall lie to the Court to which an appeal peals. would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. Section 117: Appli- Save as provided in this part or in Part X cation of Code to or in rules, the provisions of this Code High Courts. shall apply to such High Courts. Order XLIII Rule 1: An apeal shall lie from the following orders Appeals from Orders, under the provisions of Section 104, namely: XX XX XX XX XX XX XX (r) an order under Rule 1, Rule 2, Rule 4 or Rule 10 of Order XXXIX; (s) an order under Rule 1 or Rule 4 of Order XL.

THE DELHI HIGH COURT ACT, 1966 Section 5(1): Juris- The High Court of Delhi shall have, in diction of High respect of the territories for the time being Court of Delhi. included in the Union territory of Delhi, all such original, appellate and other juris diction as, under the law in force immediately before the a ppointed day, is exercisable in respect of the said territories by the High Court of Punjab. Section 7: Practice Subject to the provisions of this Act, the law and procedure in the in force immediately before the appointed High Court of Delhi, day with respect to practice and procedure in the High Court of Punjab shall, with the necessary modifications, apply in rela tion to the High Court of Delhi and accor dingly the High Court of Delhi shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction. Section 10(1): Where a single Judge of the High Court Power of Judges. of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. DELHI HIGH COURT (ORIGINAL SIDE) RULES, 1967 Rule 19: Miscellaneous Except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side.

It is not disputed that the Himachal Pradesh High Court exercises original civil jurisdiction u/s 10 of the Delhi High Court Act, 1966. It is so because the present High Court is in the line of succession to that Court and Section 10 has been maintained as a good law for the Himachal Pradesh High Court. It is undisputed that an appeal against the order of the nature passed by the learned single Judge is provided for both in Section 104 and Order XLIII Rule 1 of the Code of Civil Procedure, 1908. It is true that u/s 4 of the Code of Civil Procedure, 1908, the special jurisdiction u/s 10 of the Delhi High Court Act, 1966, has remained unaffected but in order to take advantage of this provision it has to be proved that the expression "judgment" used in Section 10 does not refer to appealable orders u/s 104 or Order XLIII Rule 1. For the reasons to be stated it is not so. Therefore, there is nothing to be preserved in Section 10 which may be considered contrary to or even in addition to the provisions contained in the Code. In fact the expression "judgment" used in Section 10 has the same meaning as has been ascribed to that expression in the Code which includes orders appealable under Order XLIII Rule 1. That apart Rule 19 (supra) of the Delhi High Court (Original Side) Rules, 1967, made under the Delhi High Court Act, 1966, has retained the provisions of the CPC which may be stated to have been impliedly taken away by Section 4 of that Code. It has been laid down in specific terms in Rule 19 that "except to the extent otherwise provided in these rules, the provisions of the CPC shall apply to all proceedings on original side", meaning thereby that Section 104 and Order XLIII Rule 1 have been preserved and orders appealable under those provisions will be appealable u/s 10 of the Delhi High Court Act, 1966. Therefore, Section 4 of the CPC is really truncated by Rule 19.

In University of Delhi and Another Vs. Hafiz Mohd. Said and Others, a Full Bench of that Court dealt with a similar question of law. The following observation of the Bench is pertinent:

By the application of the Rule 19 of Delhi High Court (Original Side) Rules, 1967 which in terms also applies the CPC to the ordinary original civil jurisdiction of Delhi High Court, an appeal u/s 10(1) of the Delhi High Court Act would be competent only if it falls within Section 104 or Order 43, Rule 1 of the CPC It is not correct to say that because by the application of Rule 19, the Orders which are appealable are restricted to those mentioned in Order 43, Rule 1 of the Code there is a conflict between Section 10(1) and Rule 19 of the Rules as the two provisions deal with different matters.

When legislature provided in Section 10(1) of the Delhi High Court Act that an appeal shall lie from the judgment of a single Judge to the Division Bench, it must have meant to refer to the expression ''judgment'' in the same terms as defined in the CPC and thus to continue the existing law and practice.

Thus an appeal u/s 10(1) of the Act against the order of a single judge in the exercise of ordinary original civil jurisdiction to a Division Court lies only in those cases where an order is a judgment as defined in the Code. In other words apart from the orders which have the force of a decree, appeals will, therefore, lie only against those orders passed by the single judge which are mentioned in Section 104 read with Order 43, Rule 1 of the Code and no appeal will lie against other orders which are outside these two provisions.

The learned Judges noted the conflict in opinions of various High Courts on the interpretation of the term ''judgment'' used in the Letters Patent and held that the legislature never intended to continue that stage of uncertainty regarding the meaning of ''judgment'' while enacting Section 10 of the Delhi High Court Act, 1966. They proposed and really did give a definite meaning to that expression and necessarily referred it to the provisions of the Code of Civil Procedure. To accept the other contention would be to impute illogical intention to the legislature and suggest that it wanted to create a confusion and conflict by using the expression ''judgment'' and in the opinion of that Court this conflict and confusion was avoided and a definite meaning was given to the term ''judgment'' which was the same as contained in the Code of Civil Procedure. Thus University of Delhi and Anr. v. Hafiz Mohd. Said and Ors. (supra) is a direct authority on this point and I am in respectful agreement with that judgment.

In The Union of India (UOI) Vs. Mohindra Supply Company, in an analogous position with reference to Section 39(2) of the Arbitration Act, their Lordships held that in Clause 10 of the Letters Patent of the Punjab High Court an appeal before Division Bench was subject to the prohibition contained in Section 39(2) of the Arbitration Act and hence a second appeal was excluded. In fact appeals under Letters Patent were included in Section 39 and were required to be pursued within the meaning of that section. Their Lordships were faced with the argument that intra court appeals were not contemplated u/s 39 and so an appeal under Clause 10 of the Letters Patent remained unaffected by Section 39. It was observed, that intra court appeals were not excluded from Section 39 and the qualifying expression "to the Court authorised by law to hear appeals from original decrees of the Court passing the order" does not import the concept that the appellate Court must be distinct and separate from the Court passing the order or the decree. The legislature has not so enacted and the context does not warrant such an interpretation. The clause merely indicates the forum of appeal.

The expression used in Section 106 of the CPC is "to which an appeal would lie from the decree in the suit in which such order was made". These words are in pari-materia similar to the expression "authorised by law to bear appeals from original decrees of the Court" so interpreted by their Lordships in the Union of India v. The Mohindra Supply Co. (supra), The expression will not necessarily mean an appeal from a lower Court to the higher Court. It may include an appeal from a single Judge to a Division Bench of the same High Court.

Their Lordships further referred to Section 4 of the CPC and said that no such section existed in the Arbitration Act. It was, therefore, observed that the special jurisdiction of Clause 10 was always subject to Section 39 of the Arbitration Act was if second appeal was prohibited u/s 39 the same could not be amenable under Clause 10. But that will not make any difference for us because in the instant case Rule 19 of the Delhi High Court (Original Side) Rules brings in all the provisions of the Code and applied them to Section 10. That section of the Delhi High Court Act, 1966, is subject to the legislative provisions contained in the Code of Civil Procedure. Thus an appeal from an order is only permissible in Section 10 which is so provided for in Section 104 or Order XLIII Rule 1 and not otherwise.

The Allahabad High Court in three cases: Vishnu Pratap and Others Vs. Sm. Revati Devi and Others, , Dhoom Chand Jain Vs. Chaman Lal Gupta and Another, and Gopal Behari Kapoor v. District Magistrate, Etah and Ors. 1967 A.L.J. 990: has taken a different view. But the learned Judges of that Court referred to Section 4 of the CPC and considered that the special jurisdiction under Clause 10 of the Letters Patent was preserved and could not be affected by the provisions of the Code. In view of Rule 19 of the Delhi High Court (Original Side) Rules applicable to Himachal High Court, the position is altered in the present dispute. Here the effect of Section 4 of the CPC has been rendered nugatory by Rule 19 and, therefore, Section 10, on the basis of the reasoning approved by their Lordships in University of Delhi and Anr. v. Hafiz Mohd. Said and Ors. with which I am in respectful agreement, stands subservient to the provisions of the CPC and those orders are appealable u/s 10 which have been specifically made appealable u/s 104 or Order XLIII Rule 1. The other argument is that Section 10 of the Delhi High Court Act, 1966, was specifically enacted to avoid the confusion relating to the term "judgment" and the legislature wanted to ascribe for it a definite meaning which could be no other but the meaning assigned to it in the Code of Civil Procedure. There is no such enactment like Section 10 available to Allahabad High Court. Therefore, the three cases of that learned Court will be of no assistance. In Vishnu Pratap and Ors. v. Smt. Revati Devi and Ors. (supra) a Co. Judge of that Court appointed Receiver under Order XL Rule 1. It was held that no appeal lay before Division Bench became Clause 10 applied and not Order XLIII Rule 1. The conception of two Courts--one higher and the other lower was confirmed and a single Judge was held to be as much High Court as two Judges sitting in a Bench. In Dhoom Chand jain v. Chaman Lal Gupta and Anr. (supra) a second appeal was filed against decision regarding objections under Order XXI Rule 90 of the Code of Civil Procedure. It was held that although the second appeal was barred under Sub-section 2 of Section 104 but it was not barred under Clause 10 which was considered independent of that provision. The learned Judges took aid from Section 4 of the CPC and held that Clause 10 preserved its special jurisdiction to hear the second appeal.

In Gopal Behari Kapoor v. District Magistrate Etah and Ors. (supra) an interim injunction was passed regarding a meeting held by the Municipal Board. The order was held not to be ''judgment'' under Clause 10 of the Letters Patent. Although the appeal was provided in Order 43 Rule 1 against an order granting interim injunction yet that provision was not held applicable. The Clause 10 was considered independent of and not influenced by, in any manner, Order XLIII Rule 1. As such the appeal was not permissible. The effect of Section 4 of the CPC was also considered by the learned Judges. As I have stated above, these three cases, with respects to the learned Judges, will not give a good law for this High Court. Here we are governed by Section 10 of the Delhi High Court Act, 1966, and Rule 19 made on the original side of that Court. The direct judicial decision on these provisions is to be found in University of Delhi and Anr. v. Hafiz Mohd. Said and Ors. (supra) and that may be held to be a good law for this Court. A view similar to Allahabad High Court was taken in J.K. Chemicals Ltd. Vs. Kreba and Co. Ltd. and Others, For the reasons stated above and with due respects to the learned Judges that will again be not a correct view for this Court.

Therefore, I am confident to say that the expression ''judgment'' used in Section 10 of the Delhi High Court Act has the same meaning as has been given to it in the Code of Civil Procedure. Any order amounting to ''judgment'' which is appealable in Section 10 will only be that order which has been specifically made appealable in Section 104 or Order XLIII Rule 1 of the Code of Civil Procedure. The present order of the learned single Judge being appealable under those provisions is decidely appealable before a Division Bench.

Having disposed of the legal objection, I shall now advert to the merits of the appeal otherwise. The learned single Judge has held that a prima facie case is made out in favour of the Plaintiffs. I too am of the same opinion. The three sale deeds no doubt existed in the name of Smt. Veeranwali and Stawant Singh Kochhar but prima-facie these were executed Capital and the title passed on to all the four branches of the common ancestor Boota Singh Kochhar. The case of the Defendants regarding the cheque for sale price which admittedly existed in the name of Asa Singh Kochhar Plaintiff is rather governed by extra ordinary circumstances which need strict proof to be established in Court. Whether Darshan Singh Kochhar brought that much amount and as there was difficulty in counting and so the cheque was converted in the name of Asa Singh Kochhar are circumstances which will need cogent evidence which is yet to come. For the present, prima facie, the consideration was passed on by Asa Singh Kochhar and the Fixed Deposit Receipts belonging to family members made a major contribution. It is stated that the Plaintiffs never made any attempt to equalise their shares. That may be due to the fact that the relations between the parties were cordial after 1947 when the first sale deed was obtained. The sale deed itself remained with Asa Singh Kochhar to begin with. Thereafter it was handed over to Dhian Kaur Defendant No. 11. The Defendants 1 to 6 have been able to file only a Registration Slip and not the original document. This would also indicate that the Plaintiffs retained a title in themselves when the Defendant No. 11 on their behalf kept the sale deed. The reply of the Defendants 1 to 6 is that Jaswant Singh Kochhar Plaintiff No. 2 somehow removed the sale deed from their papers. That statement cannot be prima facie believed without support of adequate evidence. Regarding possession, it is admitted that both the Plaintiffs are in possession of portions of Willow Bank Estate. Manohar Singh Kochhar Defendant No. 8 is also in possession of Willow Bank Cottage. The Defendants 1 and 2 proclaimed that the Plaintiffs are either tenants or licensees. They filed suits against them in 1968 and 1972 treating them as licensees and tenants but the suits or applications were all withdrawn. Besides it, they have not so far disclosed the source of title as tenants or licensees. In the year 1948 a statement was made by Darshan Singh Kochhar before Mr. Justice D. Falshaw (page 337). In that statement Darshan Singh Kochhar very much stated that he could not bring any substantial amount from Pakistan, from which it can be inferred that the consideration for the sale of 1947 was accumulated from several family members and was not contributed by him alone. In 1951 Jaswant Singh Kochhar Plaintiff gave an application to the Income Tax Officer (page 335) in which he narrated that a sum of Rs. 50,000/- was brought by Dhian Kaur Defendant No. 11 from Pakistan. In that application it was further recited that the entire family members had contributed in the purchase of the property at Simla. In 1958 and 1960 several letters were written by Jai Singh Defendant No. 7 to Jaswant Singh Kochhar Plaintiff. In these letters the Plaintiffs'' title was acknowledged and his advice was asked for administering the estate. In 1970 (5-11-1970)(page 354) Jai Singh wrote a letter to Darshan Singh Kochhar Defendant No. 1 and in it a definite hint was made regarding the cheque and documents relating thereto which were in existence before the Punjab National Bank. It was interpreted on behalf of the Plaintiffs that Darshan Singh Kochhar wanted him to tamper with these documents but Jai Singh showed inability to do so. The letter dated 20-11-1970 (page 355) by Jai Singh Defendant No. 7 to Darshan Singh Kochhar directly deals with the properties in dispute. It is recited therein that the three properties were purchased by all the family members. As against these documents which are in favour of the Plaintiffs, the Defendants relied on a letter dated 15-7-1958 by Darshan Singh Kochhar to the administrator. This he could write even if the Plaintiffs or Defendants 8 to 11 were the share-holders in the property. The Defendants essentially relied on affidavits filed by the Plaintiffs or Defendants 8 to 11 before the Income Tax authorities which are for the years 1957 and 1962. These affidavits were written with the avowed object of escaping the tax liability. That may be the reason why those admissions were mad. However, it is left to the parties at the time of trial to prove or disprove the allegations made in these affidavits. Letters written during the years 1972 to 1973 from Jai Singh to Darshan Singh Kochhar have been filed by the Defendants to prove that Jai Singh was loyal to them until that year. Similarly as Jai Singh was writing letters to Jaswant Singh Kochhar, he was also writing letters to Darshan Singh Kochhar. Therefore, the documents filed by the Defendants prima facie do not demolish the case of the Plaintiffs.

The learned single Judge has denied the reliefs to the plain-tiffs on the ground that their wives filed suits in 1969-70 and the same were withdrawn in 1973. An application for interim injunction and Receiver was filed in Suit No. 12 of 1969 but the same was not pursued and was withdrawn in 1973. From this the learned single Judge held that there was no urgency for the appointment of a Receiver or for an issuance of an ad interim injunction. In my opinion the wives of the Plaintiffs were not holding title on behalf of the Plaintiffs but in their own rights. They could not be understood to be the legal representatives of the Plaintiffs. Therefore, if the two suits were withdrawn and the injunction or Receiver application was not pressed at that time, that will not afford a ground to refuse that relief to the Plaintiffs at the present stage. The property is decidedly in a bad shape and several photographs have been filed to show it. Some repairs have been done by the Defendants but yet more repairs are needed. In case the properties are left unattended to grave danger is likely to arise as to the subject matter of the dispute. The conduct of Defendant No. 7 is also well known. The accounts have been taken away by the Defendants 1 to 6. The Plaintiffs are deprived from seeing the accounts and no payments are being made to them. It is admitted case of the Defendants that Defendant No. 7 had misappropriated Rs. 2,500/-. One M.L. Saxena who is tenant in a portion of the building has already denied the title of the Plaintiffs as well as of the Defendants. His written statement is dated 9th of November, 1973 (page 370). In 1968 a case was instituted by Smt. Veeranwali for encroachment upon a portion of this estate. The plaint is dated 18-5-1968 (page 359). There is an allegation in the plaint that Defendants 1 to 6 are creating encumbrances on the property in dispute. Satwant Singh Kochhar Defendant No. 3 has already executed a gift deed on 24-9-1969 in favour of his wife and children. In the petition for adinterim injunction, in paragraphs 11, 12 and 13 it is stated by the Plaintiffs that the Defendants 1 to 6 are trying to mortgage the properties in favour of the Punjab and Sindh Bank Simla and that they will further create encumbrances or will alienate the property to any person. All these features are necessarily to be taken into consideration for granting the relief of injunction as well as relief of appointment of Receiver.

The Defendants raised yet another preliminary objection that the disputed property was not shown by the Plaintiffs in their Wealth Tax Returns and so u/s 281A of the Income Tax Act the suit was likely to fail. But a return has been filed by the Plaintiffs showing that the disputed property was mentioned in that return for the purpose of Wealth Tax. As such prima facie due compliance was made of Section 281A and the suit is not likely to fail on that account.

The Plaintiffs having a prima facie case have an excellent chance of success in the suit. There are adverse and conflicting claims to the property. Decidedly emergency or damage or loss demanding immediate action have arisen. The property being dilapidated is likely to sustain further loss unless proper repairs are made. There are several tenants and they are even asserting title in themselves. Encroachments are taking place. The element of danger is of course there.

In these circumstance the two necessary ingredients for interim injunction, namely irreparable injury and balance of convenience are made out. In fact the mischief will be more by refusing the injunction than by granting it. Similarly the Receiver must also be appointed. Besides prima-facie title in favour of the Plaintiff, for granting the interim relief of Receiver, an element of danger to the property must be established. The Court has to take a balanced view lest the appointment of the Receiver may not result in more mischief by granting that relief than by refusing it. As far as possible the Defendant in de facto possession is not to be dispossessed.

Therefore, in the final analysis both the reliefs of interim injunction and Receiver are granted. The Defendants 1 to 6 are restrained from selling/alienating or creating any encumbrance in respect of the properties in suit.

The Defendant No. 1 Darshan Singh Kochhar is appointed as a Receiver of the properties Willow Bank Eatate and Craig''s Villa with powers as to realization, management, protection, preservation and improvement of the properties. He shall also collect the rents and profits thereof and shall render account of such realization as well as expenses to Court once every six months. The Receiver shall not, however, dispossess the Plaintiffs from any portion of the said properties.

The appeal is, therefore, allowed and the order of the learned single Judge is set aside. Instead interim injunction is given and similarly a Receiver is appointed, as stated above. The parties shall bear their own costs in this appeal.

T.U. Mehta, J.—An interesting as well as important question which is involved in these both matters is with regard to the maintainability of an appeal before a Division Bench of this Court against an interlocutory order passed by a learned Single Judge in exercise of his ordinary original civil jurisdiction. There being a difference of opinion between the Hon''ble the Chief Justice and Hon''ble Mr. Justice Lal before whom this question arose, the same is referred to a third Judge and that is how this matter comes before me. The Appellants herein have filed Civil Suit No. 6 of 1974 in ordinary original civil jurisdiction of this Court for partition of suit properties and for taking accounts in respect of these properties. Pending the suit they prayed for an injunction under Order 39 of the CPC and by a separate application they also prayed for the appointment of a receiver. The suit came up for hearing before Thakur, J. who, after holding that the Appellants had a prima facie good case, dismissed these applications on the ground that no irreparable damage was going to be caused if injunction was not granted or the receiver was not appointed. Being aggrieved by this decision the Appellants who are the Plaintiffs have preferred these two appeals. Both these appeals came up for hearing before the above referred Division Bench. At that time the contesting Respondents raised a preliminary point before the said Bench that these appeals were not maintainable as orders appealed against did not constitute "judgment" within the meaning of the expression used in Section 10(1) of the Delhi High Court Act, 1966 (No. 26 of 1966)(hereinafter referred to as "the Act"). On this question there being a difference of opinion between the learned Judges of the said Division Bench, the present reference is made in the following terms:

As we differ on the question whether the present appeals are maintainable, we refer that question for the opinion of a third learned Judge of this Court. The papers of the case shall be placed before the Hon''ble the Chief Justice in this connection.

The learned Chief Justice has held that the CPC makes no provision for intra-court appeals, that such a provision is made only by Section 10(1) of the Delhi High Court Act, 1966, and that Sub-section (1) of Section 10 of the said Act provides not only for the forum but also for the right to appeal against the "judgment" of a single Judge of this Court. He has, however, held that since the interlocutory orders against which the appeals are preferred do not amount to "judgment", the appeals are not maintainable. After construing the relevant provisions of the Code of Civil Procedure, and the Delhi High Court Act as well as the rules framed thereunder, the learned Chief Justice has held that Sections 122 and 129 of the CPC confer on High Courts the power to making of procedural rules and not to rules creating substantive rights, and hence no substantive right to file an appeal against the interlocutory order in a suit can be said to have created in favour of the Appellants. According to him even Section 7 of the Act which empowers the High Court to frame rules with respect to "practice and procedure" of its ordinary original civil jurisdiction does not enable the High Court to create a substantive right of appeal against such orders, and hence Rule 19 of the rules framed under the Act by which provisions of the CPC are applied to all the proceedings of the original side of the High Court, should be construed accordingly.

According to the learned Chief Justice, therefore, these appeals are not maintainable. He has, however, recognised the desirability of providing a forum such as a Division Bench of this Court for preferring appeals against such orders passed by a single Judge during the trial of a suit, by making the following observations:

Before parting with these appeals, a few observations would be appropriate. In the course of the exercise of original civil jurisdiction, it becomes necessary for a learned single Judge of this Court to entertain applications of an interlocutory nature. Some of those applications pray for important reliefs and are disposed of by orders with serious consequences to one party or the other. Not infrequently the original civil proceeding, in which the orders are made, may require appreciable time for trial. The interests of justice require that the validity of such interlocutory orders should be open to appeal in a convenient forum, a right of appeal being provided as in Section 104 and Order 43 Rule 1 of the Code of Civil Procedure, and a convenient forum being a Division Court of the High Court. It is a matter for consideration whether appropriate legislation should not be enacted.

Shri D.B. Lal, J. has taken the contrary view holding that different provisions of the CPC including Section 104 and Order 43 confer a right of appeal against the orders which the CPC makes appealable, and this right is further recognised by Rule 19 of the rules framed by the High Court under the Act. According to him forum for the exercise of this right is created by Section 10(1) of the Act. He has further held that the expression "judgment" which is found used in Sub-section (1) of Section 10 of the Act has got the same meaning as is ascribed to it by Section 2(9) of the CPC with the result that even the appealable interlocutory orders passed by a learned singh Judge of this Court in its ordinary original Civil jurisdiction are subject to appeal before a Division Bench. According to Lal, J., therefore, both these appeals are maintainable.

Before discussing the disputed question, it would be necessary to trace the background of legislative development by which this Court acquired its original jurisdiction under which civil suits are tried.

Suit properties are situated at Simla which was previously under the jurisdiction of the Punjab High Court. It is an admitted position that Punjab High Court did not enjoy any ordinary original civil jurisdiction but did enjoy extraordinary original jurisdiction by virtue of clause 9 of the Letters Patent constituting the High Court of Judicature at Lahore dated 21st March, 1919 (hereinafter referred to as the "Letters Patent"). Clause 10 of these Letters Patent provided for intra-court appeals against a judgment of a single Judge to a Division Bench. Thus, ordinary civil jurisdiction over the territory of Simla was previously with ordinary civil Courts, the extraordinary original jurisdiction being with the High Court. Thereafter, by 5 Section of the Punjab Reorganisation Act, 1966, Simla was added to the then existing Union territory of Himachal Pradesh, the judicial administration of which, was under the Court of Judicial Commissioner, which remained in existence upto 1-5-1967. On 5th September, 1966, the Delhi High Court Act was enacted, and this area came within the jurisdiction of the Delhi High Court as on 1-5-1967. The Delhi High Court Act, 1966 provided for the constitution of a High Court for the Union territory of Delhi, and also for the extension of the jurisdiction of that High Court to the then existing Union territory of Himachal Pradesh. Thus the territory of Simla came to be governed by the provisions of the Delhi High Court Act from 1-5-1967 onwards. This position continues even after Himachal Pradesh acquired the full status of Statehood on 25-1-1971 under the State of Himachal Pradesh Act, 1970.

It is thus clear that till the Delhi High Court Act was applied, ordinary original civil jurisdiction of Simla vested in ordinary civil Courts, but with the application of the said Act, the position was changed by Section 5 which is enacted in the following terms:

(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab.

(2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary civil jurisdiction in every suit the value of which exceeds twenty-five thousand rupees.

By a subsequent amendment the above referred pecuniary jurisdiction of twenty-five thousand rupees is increased to fifty thousand rupees. A bare perusal of the two sub-sections of Section 5 shows that while Sub-section (1) reserved the original, appellate and other jurisdiction which the High Court of Punjab enjoyed before the appointed day, Sub-section (2) invested the High Court with a fresh jurisdiction with regard to ordinary civil suits having the pecuniary value of Rs. twenty-five thousand or fifty thousand, as the case might be. This jurisdiction was previously enjoyed ordinarily by the civil subordinate courts and not by the High Court. In other words, Sub-section (1) of Section 5 contemplates extraordinary original jurisdiction, while Sub-section (2) contemplates ordinary original jurisdiction.

Consequent upon this enactment of Section 5 the legislature also enacted Section 10 vesting certain powers on the Judges of the High Court. Section 10 is divided into two sub-sections which are as under:

(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by Sub-section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of Sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.

It is obvious that Sub-section (1) of this section refers to ordinary original jurisdiction while Sub-section (2) refers to extraordinary original jurisdiction conferred on the High Court of Punjab by Letters Patent.

Thus ordinary original civil jurisdiction in certain matters arising from the territory of Simla vested for the first time in the High Court and the Judges of the High Court were accordingly invested with certain powers to try the ordinary original civil matters only when the Delhi High Court Act of 1966 was applied. Before that Act, High Court had no ordinary original civil jurisdiction but it did possess extraordinary civil jurisdiction. This aspect of the matter has an important bearing on the interpretation and the meaning of the expression "judgment" which is found used in Sub-section (1) of Section 10, as, in my opinion, the interpretation and meaning of that expression in context of extraordinary jurisdiction under the Letters Patent, would not be helpful.

Proceeding further with the provisions of the Act, reference may also be made to Section 7 thereof, which empowers the High Court to make rules with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction. This section is in the following terms:

Subject to the provisions of this Act, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, with the necessary modifications, apply in relation to the High Court of Delhi and accordingly the High Court of Delhi shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction:

Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court.

Pursuant to its powers u/s 7, the High Court has framed rules called "Delhi High Court (Original Side) Rules, 1967". Of these rules, Rule 19 is important. It is in the following terms:

Miscellaneous.--Except to the extent otherwise provided in these rules, the provisions of the CPC shall apply to all proceedings on original side.

Since these proceedings arise out of ordinary original civil jurisdiction as contemplated by the Code of Civil Procedure, it is also necessary to make a brief reference to those provisions of the Code which have a bearing on the subject. Section 4 of the Code provides for savings, and Sub-section (1) thereof says that in absence of any specific provision to the contrary, nothing in that Code shall be deemed to limit or otherwise affect any special or local law 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. This Sub-section (1), therefore, saves the provisions of Letters Patent and other similar enactments conferring special jurisdiction on Courts. Part VII of the Code provides for appeals. Section 104, which is found in this Part, refers to appeals from orders. It says that an appeal shall lie from the orders specified in it, 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 order. The section contains a list of certain orders from which the appeal is supposed to lie. Item No. (i) of this list is in the following terms:

(j) any order made under rules from which an appeal is expressly allowed by rules.

Thus this section expressly says that if the rules framed under the Code make a particular order appealable, then the parties concerned shall have a statutory right to file an appeal. It is, therefore, necessary to see the rules which are framed in the said Schedule. Order 43 Rule 1, gives a list of the orders against which an appeal can be preferred as contemplated by Section 104. Clause (r) is with regard to the orders made under Rule 1, 2, 4 or 10 of Order 39 and Clause (S)is with regard to the orders made under Rule 1 or Rule 4 of Order 40. It is an admitted position that both the orders under which these appeals are preferred, are appealable orders as contemplated by Section 104 read with Order 43 Rule 1.

Proceeding further with the scheme of the CPC we find Section 106 which contemplates the forum to which appeal against the appellate orders could be filed. This section reads as under:

What Courts to hear appeals.--Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

Thus this section makes it clear that appeal against appellate orders can be filed to that court to which an appeal from the decree in the suit concerned could be filed.

Then comes Section 109 which contemplates the filing of appeals to the Supreme Court. According to this section appeal to the Supreme Court would lie, subject, of course, to the provisions in Chapter IV of Part V of the Constitution of India, from any judgment, decree or final order.

We then come to Part IX of the Code which makes special provisions relating to High Courts. Section 116 of this Part says that this part applies only to the High Court not being the Court of Judicial Commissioner. Then comes Section 117 which is very important, and which provides in unequivocal terms that save as provided in this Part or in Part X or in rules, the provisions of the Code shall apply to such High Courts. The importance of this Section 117 contains in its impact upon the suits which are to be tried by the High Court, inasmuch as it lays down that all the provisions of the Code shall apply to the High Courts subject, of course, to the exception made either in Part IX or Part X or in rules. One such exception is found in Section 120 which says that the provisions contained in Sections 16, 17 and 20 shall not apply to the High Court in exercise of its original civil jurisdiction. The present matters are admittedly not covered by any of these exceptions. It is, therefore, necessary to see whether there is any provision in Part X of the Code which would act as a saving for the operation of the provisions of Section 117. Part X of the Code is with regard to the framing of the rules. It contains only tow sections, which are relevant for our purpose. These two sections are Sections 122 and 129. Section 122 is in the following terms:

High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.

Thus this section enables and empowers the High Courts to make rules regulating their own procedure. Section 129 empowers all High Courts to make rules as to their original civil procedure. It should be noticed here that though the marginal note of this section makes a reference to "Chartered" High Courts, the section itself does not confine itself only to Chartered High Courts, but makes a reference to all High Courts. This section is in the following terms:

Power of Chartered High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court not being the Court of Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

Thus this section empowers all the High Courts in India to make rules for the purpose of regulating their own procedure in exercise of their original civil jurisdiction. Of course, this rule should not be inconsistent with the Letters Patent or any other law.

From the scrutiny of the above to sections namely, Sections 122 and 129 of Part X, it is clear that they do not contain any provision which would save or limit operation of Section 117. Of course, they do contemplate the rule making power with the High Courts, and if a High Court in exercise of this rule making power makes any enactment which would have the effect of a saving clause to Section 117, that would be an altogether a different matter. We will have, undoubtedly, to scrutinise whether there is any rule framed under the Act which works as a saving clause to Section 117. I should state here that I have not come across any such rule. Nor any such rule has been pointed out to me. The result, therefore, is that the provisions contained in Section 117 would operate without any saving clause and, therefore, the provisions of the CPC should apply to the suits tried on the original side by the High Court.

The above interpretation of the CPC and special provisions contained in Section 104 read with Order 43 rule land Section 117, clearly show that a party filing a civil suit under the provisions of the CPC has got a right of appeal against the orders enumerated in Order 43 Rule 1 of the Code. Every litigant enjoyed this right and exercised the same in a suitable forum before the High Court was invested with the ordinary original civil jurisdiction to try suits of a particular category.

Therefore, the first question which arises to be considered is whether that right to prefer an appeal against an appealable order is lost by the investiture of ordinary original civil jurisdiction in the High Court. I asked a specific question on this point to Shri Sood, the learned Advocate for the Respondents Nos. 1 to 6 who has resisted this appeal, but he could not contend, except by pointing out to the provisions of Sub-section (1) of Section 10 of the Act, that the right of appeal contemplated by Section 104 read with Order 43 Rule 1 of the Code is lost to a litigant. So far as the provisions of Sub-section (1) of Section 10 are concerned, his contention was that those provisions curtail the right of appeal by necessary implication because the expression "judgment" which is used in that sub-section was construed in a particular manner even before the Act was enacted. I find myself unable to accept this contention firstly because, there is nothing in the plain language of Sub-section (1) of Section 10 to show that this right is curtailed, and secondly because, as will be seen hereafter, I am of the opinion that the meaning of the expression "judgment" appearing in Sub-section (1) of Section 10, cannot be circumscribed by what the courts have previously stated with reference to this word found used in Clause 10 of the Letters Patent of the Lahore High Court and Clause 15 of the Letters Patent of the Bombay and Calcutta High Courts. The implication which is relied upon by the learned Advocate for the Respondents 1 to 6, therefore, cannot be invoked for the purpose of curtailment of a substantive right of appeal which existed in favour of a litigant before the Act was enacted. I find that the provisions of Section 104 and 117 of the Code make it abundantly clear, even in absence of Rule 19 of the rules framed under the Act, that whenever a civil suit is tried either by an ordinary civil Court, or by a High Court in its ordinary original civil jurisdiction, a party to that suit has a right of appeal against the order which falls within the ambit of Order 43 of the Code.

The question which still remains to be considered is whether the forum for preferring such appeals against these appellate orders is provided. I find myself in respectful agreement with the learned Chief Justice, when he says that the Code nowhere contemplates a forum for intra-court appeals. The reason for the same is obvious, because a judgment of even a single Judge of a High Court is a judgment of the High Court itself. Therefore, if there were no Letters Patent or the Act like the Delhi High Court Act, an appeal against an order covered by Order 43 of the Code could lie only to the Supreme Court u/s 109 of the Code if that order amounted to "judgment, decree or final order" within the meaning of that section.

Provision for intra-court appeal is made by Clause 10 of the Letters Patent of the Lahore High Court, and Section 10 of the Delhi High Court Act, 1966. Clause 10 of the Letters Patent contemplates intra-court appeals in cases of exercise of extraordinary original jurisdiction and of appellate jurisdiction. Section 10 of the Act saves this power in Sub-section (2), and goes further by investing the High Court with additional power of hearing intra-court appeals with respect to the matters which are of the character of ordinary original jurisdiction. This is done by Sub-section (1). Section 10 thus becomes an all comprehensive section by covering all the types of intra-court appeals. Thus by the application of the Act High Court has two types of original jurisdiction; namely (1) ordinary and (2) extraordinary. The first type of jurisdction is provided by Sub-section (1) of Section 10, while the second type of jurisdiction is provided by Sub-section (2) thereof. Historical perspective of both these types of original jurisdiction being different, the distinction between Sub-sections (1) and (2) assumes importance. Intra-court appeals contemplated by both the sub-sections of Section 10 are against the "judgment" of a single Judge because while Sub-section (1) specifically refers to that expression, Sub-section (2) makes a reference to that expression by necessary implication because it saves Clause 10 of the Letters Patent.

The pertinent point which, therefore, arises to be considered is whether the expression "judgment" carries the same meaning with reference to both sub-sections of Section 10. The learned Chief Justice has answered this question in the affirmative. However, in the context of the different legislative developments which form the background of both these sub-sections, I, with due respect, find it difficult to agree with the view taken by him on this point. The legislative background of the Sub-section (1) of Section 10 is the Code of Civil Procedure, while that of Sub-section (2) is the Letters Patent. The expression "judgment" appearing in Clause 10 of the Letters Patent has been variously interpreted by different High Courts as having a restricted meaning of covering only those orders which finally adjudicate upon the rights of parties. It is not necessary to make a reference to the catena of cases on the subject as, the earlier decision of the Calcutta High Court in Justices of the Peace for Calcutta v. Oriental Gas Co. reported in (1872) 8 BLR 433, wherein the following observations of Sir Richard Couch C.J. appear, is considered by Courts in our country as locus classics. The learned Chief Justice has said therein:

We think that ''judgment'' means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole case or suit and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined.

In Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, the Supreme Court has laid down two tests to find out the meaning of the expression "judgment" found in Clause 15 of the Letters Patent of Calcutta and Bombay High Courts. The first test is that the judgment must be final pronouncement which puts an end to the proceedings so far as the case with which it is concerned. The second test is that the judgment must be involving the determination of some right or liability though it may not be necessary that there must be a decision on the merits. In a subsequent decision in Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, the Supreme Court has observed that in finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent, it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The Supreme Court has further observed that the nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. This, then, is the final opinion expressed by the Supreme Court with regard to the meaning of the expression "judgment".

It is obvious that this interpretation of the word "judgment" is given with reference to the extraordinary jurisdiction of the High Court under Letters Patent. The question is whether the same interpretation can hold good even with regard to ordinary original jurisdiction wherein the rights of the parties arise out of the provisions of the Code of Civil Procedure. It is a well settled principle of interpretation that whenever the legislature uses an expression which has acquired a particular well known connotation, the said expression should be construed as having the same connotation unless a contrary indication is found. Therefore, when the legislature used the word "judgment" in Section 10(1) while stipulating intra-court appeals with reference to ordinary original civil jurisdiction contemplated by the Code of Civil Procedure, it should be presumed to have used that word only in the sense in which it is used in the CPC and not in the since in which it was understood in the context of Letters Patent. The context of Letters Patent, it may be noted, is preserved by Sub-section (2) of Section 10, while the context of the CPC is preserved by Sub-section (1) thereof. I find that this dichotomy is very important because there is no indication either direct or indirect to show that the legislature did, in any manner, intend to nullify the right of a litigant to prefer an appeal against an appellate order contemplated by Order 43 of the Code of Civil Procedure, by enacting any special provision in the Delhi High Court Act of 1966. Shri Sood, appearing on behalf of Respondents Nos. 1 to 6 contends that the connotation of the expression "judgment" which was prevalent with regard to Clause 10 or Clause 15 of different High Courts, before the Act was enacted, should be presumed to have been in the mind of the legislature, and that being so the meaning of the expression "judgment" used in Sub-section (1) of Section 10 should be confined only to that connotation. According to Shri Sood, therefore, the right of a litigant to prefer an appeal against the appellate order covered by Order 43 should necessarily be presumed to have been curtailed by the legislature by enacting Sub-section (1) of Section 10. I find it difficult to accept this contention because of the legislative background by which the parties were governed before Sub-section (1) of Section 10 was enacted. Therefore, in my opinion, the right of appeal contemplated by Section 104 read with Order 43 was kept by the legislatrue quite intact. It need not be emphsised that it was a substantive right already existing before the Act was enacted and its destruction or curtailment should not be inferred in absence of any express provision or a necessary implication. If once we reach this conclusion the question which immediately arises for our consideration is whether the legislature intended to nullify this right by not providing for a proper forum. In my opinin it should be presumed, unless contrary is indicated, that the legislature which preserved a particular right and allowed it to remain intact, also intended to enable a litigant possessing that right to avail of the remedy to exercise the same. It is in the context of this aspect of the matter, therefore, that the expression "judgment" which appears in Sub-section (1) of Section 10 should be construed. If so construed, this expression would take the meaning which can be culled out from different provisions of the Code of Civil Procedure.

In this connection Shri Sood further contended that so far as intra-court appeals were concerned, no litigant had any right under the CPC and the only right of appeal which he had was to approach the Supreme Court u/s 109. In my opinion, this contention stems from a confusion between a right of appeal simplicitor, and the forum for the exercise of that right. It is true that the CPC does not contemplate a forum for intra-court appeals, but that is not the same thing as saying that it does not confer upon a litigant a right to appeal against an appealable order. The very fact that Section 109 provides for a further remedy even against particular types of orders shows the anxiety of the legislature not to make all the types of orders final. Therefore, the only pertinent question which arises for determination is whether the Act which provides for intra-court appeals failed to provide for the usual remedy which was available to a party against an appealable order before it came into force. For the reasons stated above, my answer to this question is in the negative.

Coming to the relevant provisions of the CPC which help us in finding out the meaning of this I expression I may first refer to the definition clause contained in Section 2(9) of the Code, which defines "judgment" as meaning the statement given by a Judge of the grounds of a decree or order. Thus this definition covers not only those judgments which finally adjudicate upon the rights of the parties but also those orders which do not do so. According to this definition, therefore, the word "judgment" is capable enough to cover all those matters which give the grounds for the same. But this wide definition does not make appealable all the orders passed by a Judge trying the original suit because of the provisions contained in Section 104 and Order 43 of the Code of Civil Procedure. The result, therefore, is that only those judgments which come within the scope of Order 43 of the Code read with Section 104 are made appealable.

In this connection I find some support from two Full Bench decisions of the Delhi High Court. The one is in the case of Begum Abtab Zamani v. Sh. Lal Chand Khanna reported in AIR 1969 Del. 85, wherein the High Court discarded the two extreme propositions with regard to the meaning of the expression "judgment". The first extreme was to limit the meaning of this word only to those orders which finally disposed of the rights of the parties, and the second extreme was to extend the meaning of this expression to all orders which gave the grounds for the same. The observations of the Full Bench in para 5 of the judgment are in the following terms:

We have arrived at this conclusion on the plain reading of Section 10 of the Act in the background of the statutory scheme. In our view, the draftsman could neither have intended to restrict the right of appeal only to final judgments disposing of the entire suit, nor could he have intended it to extend to all orders made during the course of trial, however ministerial or procedural in their nature or ineffectual on the rights of the parties.

In the subsequent Full Bench case of the very same High Court, namely University of Delhi and Another Vs. Hafiz Mohd. Said and Others, the Court has held that when the legislature provided in Section 10(1) of the Delhi High Court Act that an appeal shall lie from the judgment of a Single Judge to the Division Bench, it must have meant to refer to the expression "judgment" in the same terms as defined in the CPC and thus to continue the existing law and practice. Sachar, J. who has spoken for the Full Bench in that case has traced historical background of Sub-section (1) of Section 10 and has culled out the intention of the lagislature from this background. I do not find sufficient reasons to differ from the reasoning adopted by the Delhi High Court in this case.

In the result, therefore, with due respect, I find myself in agreement with the view taken by Lal, J. on this point.

On this short ground both the appeals should be considered as maintainable, even if the provisions contained in Section 122 and 129 of the CPC and Rule 19 of the rules framed under the Act are kept out of account.

I have already referred to the provisions contained in Sections 122 and 129 of the Code of Civil Procedure. I have also referred to the provisions contained in Section 106 of the Code. So far as Section 106 is concerned, it clearly provides for a forum by stating that an appeal from an appellate order would lie to the same Court to which an appeal would lie from the decree in the suit from which the appellate order is made. Therefore, in order to find out the forum contemplated by Section 106 of the Code the only question which is required to be asked is to which Court the appeal would lie against the decree that may be passed in the suit. So far as the matters before me are concerned, the necessary answer is that the appeal contemplated by Section 106 would lie to a Division Bench of this Court. However, Shri Sood appearing for Respondents Nos. 1 to 6, advanced an ingenuous argument by contending that while Section 106 contemplates an appeal from a decree, Sub-section (1) of Section 10 of the Act contemplates an appeal from a judgment. He further pointed out that a judgment and a decree have altogether different concepts in law and, therefore, Section 106 cannot be utilised for the purposes of pointing out the forum to which an appeal against the appealable order would lie. The fallacy in this argument lies in the non-recognition of the fact that a judgment which finally disposes of the rights of the parties to a suit is synonymous with a decree. Every judgment which disposes of a suit contains in itself all the requirements of a decree. If appeal can be preferred to a particular court against such a "judgment", that appellate court is the forum to which an appeal would lie "from the decree in the suit" within the meaning of Section 106 of the Code of Civil Procedure. Under these circumstances the distinction between the word "decree" which is used in Section 106 and the word "judgment" which is used in Section 10(1) is merely of words and not of substance. This particular aspect is already discussed and pointed out by the above referred Full Bench judgment of the Delhi High Court in Begum Aftab''s case wherein the judgment concerned determined the rights of the parties with regard to the matters in controversy in that suit, and embodied in itself a formal expression of adjudication. That judgment was held to be a decree and was, therefore, excluded from the operation of Article 11, Schedule II of the Court Fees Act, 1870. I am, therefore, of the opinion that when Section 106 of the CPC speaks of a decree, the word decree covers even those judgments which finally dispose of the rights of the parties to a suit. If that be so, an appeal against an appealable order passed by a single Judge of the High Court in its ordinary original civil jurisdiction can be preferred to a Division Bench of the same Court.

Now adverting to Section 122 and Section 129 of the CPC as well as Rule 19 of the rules framed under the Act, the contention which was advanced on behalf of Respondents Nos. 1 to 6 by their learned Advocate Shri Sood, was that these provisions refer to the regulation of the "procedure" of the High Court and not of any substantive rights of the parties. Shri Sood pointed out that if a party is enabled to prefer an apeal over a particular order, that right of appeal, being a substantive right, cannot be provided by providing a "procedure" for an action. In this connection it should be repeated that Rule 19 of the Rules specifically provides that except to the extent otherwise provided in the rules, the provisions of the CPC shall apply to all the proceedings on the original side. Unlike Section 141 of the Code of Civil Procedure, this Rule 19 makes applicable not merely the "procedure" contemplated by the Code of Civil Procedure, but also all the provisions including those which create substantive right to prefer appeals. Therefore, the question is, whether it was open to the High Court of Delhi to frame rules by virtue of which substantive provisions of the CPC could be made applicable to a suit tried by the High Court. The existance of this power is referred to not only by Section 122 and Section 129 of the Code but also by Section 7 of the Act which is already referred to above. Section 7, as noted already, refers to the power of the High Court to frame rules as regrads the "practice and procedure" for the exercise of its ordinary original civil jurisdiction. Therefore, Shri Sood, appearing for Respondents Nos. 1 to 6 contended that while framing the rules relating to "practice and procedure" it was not open to the High Court to create any substantive right such as a right of appeal. All these contentions, therefore, invite interpretation and meaning of the expression "practice and procedure".

In State of Seraikella Vs. Union of India (UOI) and Another, Mahajan, J. referred to this expression by making the following observations:

Section 214 lays down that the Federal Court may from time to time with the approval of the Governor General make rules of court for regulating generally the practice and procedure of the Court. "Practice" in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law that gives and defines the right. "Procedure" as defined in Wharton means the mode in which successive steps in litigation are taken.

Thus, according to these observations, practice denotes the mode of procedure for the purpose of enforcement of a legal right and procedure means the mode in which the successive steps in the litigation for the enforcement of that right are taken. I do not find anything which would induce me to reject this interpretation of the expression "practice and procedure". However, the question is whether at the time of prescribing practice and procedure for conducting a particular case it is open to the rule making authority to provide for a step which, in substance, amounts to a substantive right. What is done here is to provide for an appeal for the correction of an interlocutory order passed in the course of the conduct of a suit. The question is whether making of such a provision for appeal by the High Court with a view to correct its own erroneous order during the conduct of a suit amounts to a rule with respect to "practice and procedure". If the word "practice" denotes the mode of proceeding by which a legal right is enforced, the provision for an appeal against an interlocutory order is nothing but a mode adopted for the enforcement of a particular right during the course of the original proceedings and if a "procedure" means a mode in which successive steps in litigation are taken, then the provision for appeal is nothing but a step for the litigation of that right during the course of the original proceedings. In other words, a self correcting provision such as an appeal against the court''s own interlocutory order pending the trial of the original suit, is nothing but "a practice and procedure" adopted for the purpose of determining that right. The contention of Shri Sood was that practice and procedure could be only with relation to the original proceeding and not with relation to the proceeding taken up in the appellate court. I, however, find myself unable to agree with this proposition because it is always open to the rule making authority to see that the practice and procedure adopted by it, is correct. This is more so in case of a judicial tribunal which is essentially concerned to see to it that the parties before it get substantial justice. Therefore, if such an institution frames the rules for the purposes of its own practice and procedure it can make an enactment by which it can itself set right an erroneous order passed by it. Provision for filing an appeal against an order of this Court before a Division Bench of this very court amounts to nothing but a provision for self-correction, of the "original proceedings" pending before it. Just as the pronouncement made by a single Judge of this Court is the pronouncement of this Court, the pronouncement made by a Division Bench of this Court, is also the pronouncement of this Court. In other words, such intra-court appeals are appeals to the same authority constituted differently. Therefore, the self correcting procedure adopted by providing appeal to itself does fall within the meaning of the expression "practice and procedure" adopted for the purposes of trying a particular cause on the original side.

This being the position, while enacting rules either under the Act or under Sections 122 and 129 of the Code it was open to the High Court to make a provision for correcting its own orders passed during the course of the original trial. Such a provision would be covered by the expression "practice and procedure" used in Section 7 of the Act.

It was further contended that even if it is believed that a provision for an intra-court appeal of this type is a part of "practice and procedure", the said "practice and procedure" should be with regard to the original proceedings and not to the appellate proceedings. Shri Sood pointed out that here what is done by the High Court is to provide for appellate proceedings and not original proceedings. Even this contention of Shri Sood is not acceptable because a self-correcting procedure of this type, which is adopted while the original proceedings of the main suit are pending, and the court has not become functus officio, amounts to a procedure relating to the original proceedings and not to appellate proceedings. What is sought to be corrected by an appeal is the original proceeding because, the only object behind such a provision is to see that by such a self correcting procedure the original proceedings are set right and do not result in any injustice to any of the parties.

It was contended that "practice and procedure" do not stipulate the creation of any substantive right such as a right of appeal. Even this contention is not acceptable as there can be a substantive right even in a procedure laid down by law. The CPC is essentially concerned with procedure. It, however, does create some substantive rights with regard to the procedure also Right of Appeal is one such right.

Taking thus the over-all view of the question I find that both these appeals were maintainable before a Division Bench of this Court. The question which is referred to me is, therefore, answered accordingly. The papers of the case shall, therefore, now be put before my Lord the Chief Justice for placing them before a Division Bench of this Court for disposal on merits. This reference is accordingly disposed of with no orders as to costs.