Dongarchand and Others vs Mohanlal and Others

M.W. Deo, J.

1-2. A learned Single Judge of this High Court is hearing a first appeal against a decree for petition. A receiver was appointed of the property during pendency of suit. The appointment was discontinued by the judgment of Additional District Judge. The Appellant in the first appeal had raised the question of correctness, propriety and legality of the discontinuance of appointment of receiver made by the trial Court. While hearing this first appeal, an application was made by the Appellant in first appeal for appointment of a receiver and that was allowed by the learned single Judge by order dated 8-5-1991.

It is against this order dated 8-5-1991 of the learned Single Judge that present Letters Patent Appeal has been filed and the question is whether a Letters Patent Appeal is maintainable?

Reliance was placed in the case of Shah Babulal Khimji v. Jayaben D. Kania and Anr. AIR 1981 M.P. 1786. The judgment of the Supreme Court delas with two aspects, namely (i) the nature of interlocutory order to be a ''judgment'' so as to be amenable to Letters Patent Appeal, and (ii) original or appellate jurisdiction of learned single Judge against whose decision intra-court appeal is sought.

As regards the first appeal the controversy as to whether an order appointing or refusing to appoint a receiver is or is not a ''judgment'' is concluded by Supreme Court in shah Babulal Khimji''s (Supra) holding that it is a ''judgment''.

Regarding the second aspect, it is to be seen that the Supreme Court in para 40 of the judgment in the case of Shah Babulal Khimji (supra) held as follows:

A perusal of the Letters Patent would clearly reveal two essential incidents (1) that an appeal shall lie against any order passed by the trial Judge to a Laber Bench of the same High Court and (2) that where the trial Judge decides an appeal against a judgment or decree passed by the district Courts in the mofussil, a fur her appeal shall lie only where the judge concerned declares it to be a fit ore for appeal to a Division Bench. Thus, the special law, viz., the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the Respondent that if Order 43 Rule 1 applies, then a further appeal would also He against the Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Patent extracted above the contention of the Respondent on this score must be overruled.

Thus, Letters Patent Appeal would lie against a judgment of a Single Judge making it in exercise of original jurisdiction granted under Letters Patent or other statute. But such appeal would not be tenable against appellate judgment made by Single Judge in appellate jurisdiction.

Learned Counsel for the Appellants in this Letters Patent Appeal contends that the order passed by the Learned Single Judge dated 8-5-1991 is not an ''appellate Order'' but it is an ''original Order and, therefore, the aforesaid dictum of Shah Babulal Khimji''s case (supra) would not apply even read with Order 43 Rule 1 or Section 104 of C.P.C.

Now we cannot loose sight of the factual foundation that the learned Single Judge was in fact hearing an appeal against the order of a District Judge. The question of appointment of a receiver was res integra in that appeal. It was only incidently that an application for appointment of a receiver appears to have been made. In other words the question of appointment of receiver was a part of the appeal which was being heard by the learned Single Judge. Consequently the order passed by the learned Single Judge is an interlocutory order passed in exercise of appellate jurisdiction and not qua trial Judge in exercise of original jurisdiction in the light of para 40 of the judgment of Shah Babulal Khimji''s case (supra). Consequently the Letters Patent Appeal against such an interlocutory order of a learned Single Judge of this Court passed in exercise of appellate jurisdiction cannot be held to be tenable.

It was said that the case of Shri Kunwarji Sonkar, a Letters Patent Appeal L.P.A. No 151/-6 dated 17-1-1986 Un-reported) and the case of Chhunnilal Laxman Prasad (firm) V. Agrawal & Co. and Ors. 1987 MPLI 165. were both Division Bench cases holding that a Letters Patent Appeal against order of a learned Single Judge in exercise of appellate jurisdiction was not tenable in the case of Raghvendra Singh Choudhary v. Smt. Seen a Bai AIR 1989 MP 259. a mother Division Bench held that the aforesaid two Division Bench cases i.e. Shri Kunwarji Sonkar and Chunnilal Laxman Prasad supra) did not lay down the correct law. It was therefore, said that there is conflict of opinion and the matter should be referred to a Larger Bench.

We do not think it necessary to refer the matter to a Larger Bench. Firstly because the question appears to be concluded by dictum of the Supreme Court in Shah Babulal Khimji''s case (supra) Secondly, it is to be seen that Raghvendra Singh''s case (supra was a case which related to a question of interim maintenance u/s 24 of the Hindu Marriage Act, 1955. The appeals against orders or decree under this Act are provided by the Act itself and consequently the approach was different in the case of Raghvendra Singh (supra). Again it is to be noted that in Raghvendra Singh. reliance upon the case of Dinesh Gijubhai Mehta Vs. Usha Dinesh Mehta, in which case the question of maintainability of Letters Patent Appeal really did not matter as the appeal was dismissed on facts and secondly the learned Judges only abserved that they could not see why Letters Patent Appeal was not tenable.

At the end it is partinent to note that in Yogeshwar and Others Vs. Laxminarayan Agrawal, the question of tenatility of such Letters Patent Appeal was left undecided by Division Bench constituting N.D. Jha, C. J. and Faizanuddin, J. in the judgment delivered on 16-2-1987. It is worth considering that on the very next day i e. 17-2-1987 the same Division Bench answered the question in Chhunnilal''s case (supra by holding that a Letters Patent Appeal was not maintainable against interlocutory order of a learned Single Judge in appellate jurisdiction.

For all these reason we are of the opinion that the present Letters Patent Appeal is not maintainable. It is accordingly dismissed in limine.