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Natesan, J.—In this unnumbered cause the question arises whether an appeal under Cl. 15 Letters; Patent is competent from the judgment
of our learned brother Venkataraman J., in the absence of a certificate that the case is a fit one for appeal. As the office has raised the question of
maintainability of the appeal and as learned counsel for the appellant contends that an appeal without leave is competent, the matter has been
posted before us. A brief reference to the history of the proceedings is necessary for appreciation of the points raised. The appellant before us,
Yadhava Kalyana Mantapam Choultry (by its trustees), lost the suit O.S. 68 of 1961 on the file of the II Additional City Civil Judge, filed by it for
certain reliefs relating to the trust. Under the provisions of S. 15 of the Madras City Civil Court Act, 1892, an appeal A.S. 119 of 1963, from the
decree in that suit came up hearing before the Additional City Civil Judge, Madras. The appeal was dismissed on, 2nd August 1963 and it is stated
that a second appeal S.A. 1654 of 1964, is now pending in this court. Pending A.S. 119 of 1963, a receiver had been appointed to take
possession of the choultry. On dismissal of the appeal the first defendant in the suit the contesting respondent before us filed C.M.P. 185 of 1963
before the Additional City Civil Judge who disposed of the appeal for discharge of the receiver and for direction to the receiver to hand over
possession of the choultry to him in restitution. The C.M.P was entertained in S. 19 of 1963 and the Additional City Civil Judge, while discharging
the receiver, rejected the first defendant''s prayer for re-delivery of possession to him and directed possession of the choultry, records etc. to the
first plaintiff. From this order in C.M.P. 185 of 1963, the first defendant preferred an appeal, C.M.A. 1 of 1964 to this court. This appeal was
allowed by our learned brother Venkatraman J, the learned Judge directing possession of the property to be handed over to the first defendant. It
is front this order of the learned Judge that the choultry seeks to prefer a Letters Patent appeal. The learned Judge has not declared in terms of Cl.
15 Letters Patent that the case is a fit one for appeal. There is no doubt that the learned judge''s pronouncement is a judgment as contemplated in
Cl. 10 Letters Patent. Of course, it is in the exercise of appellate jurisdiction. The question is whether this judgment is In respect of a decree or
order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court. The material part of clause 15 of
the Letters Patent runs thus:--
And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the Judgment not being a judgment passed in
the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the
superintendence of the said High Court......and that notwithstanding anything herein before provided an appeal shall lie to the said High Court.....in
the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the
superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal......
To state shortly, the effect of the provision is that when this court exercises second appellate jurisdiction, there can be no Letters Patent appeal
to a Division Bench, unless the judge exercising the second appellate jurisdiction grants leave.
The argument of Mr. G.T. Ramanujachari, learned counsel for the appellant before us, is that, though the learned single Judge of this court was
exercising appellate jurisdiction in the matter, it was in respect of an order made by a subordinate court in the exercise of its appellate jurisdiction.
The contention is that the Additional City Civil Judge, when he dealt with C.M.P. 185 of 1963, could have exercised only original jurisdiction and
not appellate jurisdiction Stress is laid on the fact that the petition in question had been filed after disposal of the substantial appeal by the learned
Additional City Civil Judge. It is urged that on the disposal of the appeal he has become functus officio and he must be deemed to have exercised
only original jurisdiction in the matter. Learned counsel points out that the Additional City Civil Judge has both appellate and original jurisdictions
As we understand, the argument appears to be that the appellate jurisdiction involves a scrutiny of proceedings of an inferior court, and here there
is no such scrutiny involved. Here, the scrutiny involved in the cause was over with the disposal of the appeal. It is urged that the C.M.P. in
question was not related to any order of the trial Court and so must be deemed to have been dealt with in the exercise of original jurisdiction. In
our view, there is a fallacy in the argument of learned counsel Prima facie the petition before the learned Additional City Civil Judge could not have
been made independent of and apart from the jurisdiction he had been called upon to exercise in the appeal. A receiver had been appointed
pending the appeal and in appointing the receiver the jurisdiction that had been exercised was appellate jurisdiction. On the disposal, of the appeal,
the petition was filed for discharge of the receiver and for certain directions to him. This petition cannot be otherwise than in the exercise of the
appellate jurisdiction of the Additional City Civil Judge. We fail to see how and in what manner the original jurisdiction which the Additional City
Civil Judge may have as a court could have been invoked in this cause. The original jurisdiction in the cause was exercised by the II Additional City
Civil Judge and the Additional City Civil judge got seisin of the case on the appeal coming up before him in the exercise of his appellate jurisdiction.
Under S. 107(2) C.P.C., subject to certain specified powers set out in clause (1) of S. 107, the appellate court shall have the same powers and
shall perform as nearly as may be the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits
institute therein. The point to be noticed here is that the appellate court is conferred the same powers as a court of original jurisdiction, but it is not
invested with original jurisdiction in the exercise of those powers. While exercising the powers which the trial court may exercise in a given cause
the appellate court will be only acting in its appellate jurisdiction. Illustrative of powers and duties which the appellate court may exercise even as
the trial court may exercise, we refer in particular to the inherent powers of court while in cognisance of a cause and the provisions of the Code
relating to incidental proceedings say the supplemental proceedings provided under S. 94and the related orders in the Code. The first appellate
court, in the exercise of appellate jurisdiction, can do many things it can issue commission, appoint a receiver, issue temporary injunction, transpose
parties and so on. The appellate jurisdiction will not come to an end immediately with the disposal of an appeal. An application for review may be
made and determined after disposal of the appeal Stay may be granted pending preferring a farther appeal. The appellate decree and judgment
may be amended by the appellate court, when necessary. In the present case, on the disposal of the appellate court was asked by the C.M.P. in
question to exercise is jurisdiction to discharge the receiver who had been appointed pending the appeal and give him directions. The court was
called upon to exercise its powers with reference to a supplemental proceeding in the appeal the appointment of a receiver. Without doubt the
learned Additional City Civil Judge was only exercising appellate jurisdiction, when he passed orders on the C.M.P. in question.
Though the position is very clear, we may as well refer to some authorities that have been placed before us. In G. Nagamma v. Venkatasubbiah
(1959) 2 A.W.R. 554 the question arose whether an appeal under Cl. 15 Letter Patent without leave of the Judge who disposed of a civil
miscellaneous appeal was competent, when the appeal before the Judge was against an order made by a subordinate judge reviewing under S.
114 read with Order XLVII rule 1 C.P.C. his own judgment in an appeal. The learned Judges (Chandra Reddy C.J. and Mohammed Ahmed
Ansari J.) rejecting the argument that the appeal before the High Court was filed only as a civil miscellaneous appeal as the test was whether the
appeal was filed as second appeal or civil miscellaneous appeal, observed that there could be little doubt that the Sub-ordinate Judge passed the
order in the case as a court of appeal and not is the exercise of original jurisdiction. A similar view was taken in Muhamad Hasan Khan Vs. L.
Bhikhari Lal and Others, also a case of an order by the first appellate court under Order XLVII rule 1 C.P.C. Ram Adhar Misra Vs. Parshottam
Misra and Others, is a case of a civil miscellaneous appeal to the High Court from an order of the lower appellate court refusing to set aside an
appellate court''s decree passed ex parte. The order was held to be one made by the lower appellate court in the exercise of its appellate
jurisdiction. The appeals to the High Court in all the three cases above referred to were under Order XLIII rule 1 C.P.C. In the present case also
the appeal to this court in the matter could be maintained only as one under O. XLIII R 1 C.P.C. Outside O. XLII rule 1 C.P.C there is no
provision for any appeal in the matter and clearly the order in question cannot be claimed to be a decree. Reference may also usefully be made to a
decision of the Nagpur High Court in AIR 1949 188 (Nagpur) and the decisions of this court in In Re: Kondalu Aiyar, Abdul Hakim v. Batcha
Sahib 51 Mad. 165. In re Venkateswarlu AIR 1958 Mad. 335 and In Re: Veeraswami Padayachi, . Due of the tests applied in the last of the
cases mentioned above may be considered. Applying it clearly from any decision in the second appeal under the Letters Patent without grant of
leave. To accept now the contention of learned counsel for the appellant before as, would be to hold that, notwithstanding the position with regard
to the second appeal, an appeal under the Letters Patent without leave is cognisable from an incidental proceeding in the same cause. As the
learned judges observed in In Re: Veeraswami Padayachi, the absurdity of the contention is apparent. Without hesitancy, therefore, we hold that
no appeal is competent in this matter. Before closing the matter, we express our thanks to Mr. G. Ramanujam who as amicus curiae referred to
some of the relevant authorities in the matter.