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Judgment
Leave granted.
These appeals by special leave arise from the judgment and order of the HighCourt of Orissa, made on December 16, 1996 in A.H.O. Nos.
4042/95.
The admitted facts are that the appeal had filed a suit for declaration that the steps taken by the respondents under Section 29 of the State
Financial Corporation Act were illegal and sought permanent injunction retraining them from disturbing its possession. Pending suit, they sought
adinterim injunction not to dispossess them from the hotel. The trial Court by order dated July 12, 1994 granted status quo whereby the appellant
remained in possession of the suit premises. On appeal filed by the respondents, the learned Single Judge vacated the status quo order by order
dated May 18, 1995. Feeling aggrieved the appellant filed Letters Patent Bench Appeal. By the impugned order the Division Bench has held that
the appeals are not maintainable. Thus this appeal by special leave.
Shri A.M. Singhvi, Learned Addl. Solicitor General appearing for the appellant, contends that under Clause 10 of the Letters Patent an appeal
would lie against the judgment of the learned Single Judge to the Division Bench. Though the order granting status quo by the trial Court was
vacated by the High Court, it is a judgment within the meaning of Section 2(9) of the Code of Civil Procedure, 1908 (for short, the 'Code').
Therefore, the bar under Section 104(2) of the Code is not attracted by operation of Section 4(1) of the Code. In support thereof, he place strong
reliance on the judgment of the Division Bench of that Court in Sukuri Dibya Vs. Hemalata Panda, 1990 (32) OJD 431 (Civil) and a Full Bench
judgment of that Court in Birendra Kr. Mahji Vs. Sitamani Bewa, 1992 (34) OJD 473 (Civil). He also contends that though this Court has
considered the nonmaintainability of an appeal by operation of Section 104 (2) of the Code read with Order XLIII. Rule l(r). the above distinction
was not brought to the notice of this Court and that therefore, the Full Bench judgment of the Hjgh Court still holds the field. We find no force in
the contention.
It is settled legal position that right of appeal is a creature of the statute. Again an interlocutory order, an appeal has been provided under
Section 104(1) of the Code read with Order XLIII, Rule 1. In respect of interim injunction, it is covered by Order XLIII, Rule 1 (r). In this case
'':& order of status quo was passed in an application filed under Order XXXIX, Rule 1 of the Code. Therefore, it is not in dispute Court un der
Order XXXIX. Rule 1 appealable under Order XLIII, Rule 1(r) of the Code.1 SubSection (2) of Section 104 specifically prohibits Second
Appeal against such an order postulating that ""No appeal shall be from any order passed in appeal under this Section"". In Resham Singh Pyara
Singh Vs. Abdul Sattar. (1996) 2 SCC 49 a Bench of this Court consisting K. Ramaswamy and B.L. Hansaria, JJ. has held that against an
appellate order of a learned Single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would not lie by reason of the bar
created by subsection (2) of Section 104 of the Code.
Clause 10 of the Letters Patent reads as under:
An appeal shall lie.... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in
exercise of the appellate jurisdiction of High Court subject to the superintendence of High Court .... and not being an order made in exercise of
revisional jurisdiction ...) of one judge of the said High Court... and in exercise of appellate jurisdiction in respect of decree or order made in
exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the judge who passed tHe judgment detlares
that the case is a fit one for appeal....
It would, thus, be seen that Clause 10 of the Letters Patent consists of only two parts. In the first part, an appeal shall be from a judgment of a
learned single judge to the Division Bench not being a judgment passed in exercise of the appellate jurisdiction or revisional jurisdiction. In other
cases, where the learned single judge exercises the appellate jurisdiction, if he certifies that it is a fit case for an appeal to the Division Bench.
Notwithstanding the prohibition contained in the latter part of Clause 10, an appeal would lie. It is seen that the Division Bench in Sukuri Dibya's
case (1990 (32) OJD 431 (Civil) (supra) has interpreted Clause 10 and stated that it consists of three components, namely:
(i) judgment of single judge passed in exercise of original jurisdiction, (ii) judgment of a single judge passed in exercise of appellate jurisdiction
against a judgment passed by a Court subject to the superintendence of the High Court in exercise of its original jurisdiction ; and (iii) against
judgment of a single judge passed in exercise of its appellate jurisdiction against the judgment passed by a Court subject to the superintendence of
the High Court in exercise of its appellate jurisdiction.
The above analysis of the learned judges in that behalf is not correct as we have stated above. The same was repeated by the Full Bench in
Birendra Kr. Majhi's case (1992 (34) OJD 473 (Civil) (supra).
The question then is whether notwithstanding such prohibition, though an order of injunction passed by the learned single judge in the appellate
jurisdiction under Order XXXIX, Rule 1 is a judgment as held by this Court in Shah Babulal Khimji Vs. Jayaben D.C. Kania. (1981>4 SCC 8;
(AIR 1981 SC 1786), an appeal would be on the basis thereof? It is contended that an appeal would lie to the Division Bench. We find no force
in the contention. It is true that the learned judges composing of the Division Bench as well as the Full Bench of the High Court construed that the
ratio in Shah Babulal Khimji's case would attract item (ii) of the analysis of the learned judges and therefore an appeal would lie to the Division
Bench. We are of the view that the learned judges, with due respect, have not understood the scope of the judgment in Shah Babulal Khimji's case
in its proper perspective. Therein, the learned single judge exercising the original jurisdiction of the High Court passed an order in applications filed
under Order X, Rulel for appointment of a receiver and issue of injunction order and Order XXXIX, Rule 1.
The question, therefore, was: Whether it was appealable? Since the learned judge had exercised the original jurisdiction and appeal would lie
to the Division Bench under Order XLIII. Rule 1, this Court considered that the order of the learned single judge was a judgment within the
meaning of Section 2 (9) of the Code and, therefore, it was appealable. It is seen that the exercise of power by the learned single judge was as a
first judge under the Code and, therefore, the order, though it is one passed under Order XLIII, Rule 1, since it gives a finality as regards that
Court is concerned, was held to be a judgment within the meaning of Section 2 (9) of the Code. Section 4(1) of the Code does not apply because
it envisages that ""in the absence of any specific provision to the contrary, nothing in this Code will be deemed to limit or otherwise affect any
jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."" Since Section
104(2) expressly prohibits an appeal, under Order XLIH. Rule 1 read with Section 104(1) no.... appeal would He. As a consequence no Letters
Patent Appeal would lie. The view taken in Madhusudan Vegetable Products Co. Ltd.. Ahmadabad Vs. Rupa Chemicals, Vapi, AIR 1986
Gujarat 156 and Firm Chhunilal Laxman Prasad Vs. M/s Agarwal and Co., AIR 1987 Madh Pra 172, by the two High Courts is correct in law.
The view of the Division Bench in Shashikala Vs. Hiren (1991) (71) Cut LT 197 is correct in law. Sukuri Dibya's case (1990 (32) OJD 431
(Civil) and the Birendra's case (1992 (34) OJD 473 (Civil) (FB) are not good law.
It is seen that the very object of introducing these amendments was to cut down the delay in disposal of suits and to curtail spate of remedial
steps provided under the Code. As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing
of second appeal under subsection (2) of section 104, the right of appeal provided under Clause 10 of the Letters Patent would not be available.
As already noted, the main part of Clause 10 clearly indicates that ""an appeal would lie from the judgment not being a judgment passed in exercise
of appellate jurisdiction."" Thereby the judgment from an appellate jurisdiction stands excluded under the first part of Clause 10 of the Letters
Patent itself. Therefore, the Division Bench of the High Court was right in holding that the Letters Patent Appeal would not lie against an order of
the learned single judge.
The appeals are accordingly dismissed No costs
Appeals dismissed.