Gossami Sri Sri Gridhariji Maharaj Tickait vs Purushotum Gossami and Others

We think that Section 575 of the CPC does not take away the right of appeal which is given by Clause 15 of the Letters Patent.

We agree in the view taken by the Bombay High Court in the case of Appaji Bhivrav v. Shivlal Khubchand ILR 3 Bom. 204 that the effect of Section 575 of the Code is to supersede the provision in Clause 36 of the Letters Patent; that in the event of any disagreement between two Judges of a Division Bench, the judgment of the senior Judge shall prevail; but (sic), and still that notwithstanding that section, Clause 15 of the Letters Patent remains in full force.

One very cogent reason, which has induced us to take this view, and which seems almost conclusive upon the point is, that if the appeal under Clause 15 of the Charter were taken away, a judgment in this Court of a Judge in a Division Bench, who agreed with the Court below upon a question of fact, would be absolutely final. However important the case might be, no appeal would lie to the Privy Council from that judgment. This is clear from Section 597 of the Civil Procedure Code, which enacts that "no appeal shall lie to Her Majesty in Council from the judgment of one Judge of the High Court, or of one Judge of a Division Court, or of two or more Judges of the High Court, where they are equally divided in opinion."

It is, therefore, we think, obviously intended that in any such case an appeal should be had in the first instance to a Division Bench of the High Court, before an appeal can be preferred to Her ''Majesty in Council, and such an appeal can only be had under Clause 15 of the Charter.

We are of opinion, therefore, that the question referred to us should be answered in the affirmative.