M. Srinivas v. Jawaharlal Nehru Technological University, Hyderabad .

M. Jagannadha Rao and Upendralal Waghray, JJ.:— This reference to the Full Bench has been made by Jeevan Reddy J. (as he then was) and Syed Shah Mohd. Quadri J. doubting the correctness of an earlier Full Bench decision in Sattemma v. Vishnumurthy (1) AIR 1964 A.P 162 (F.B) in view of the decision of the Supreme Court in Shah Babulal Khimji v. Jaber (2) (1981) 4 SCC 8 : AIR 1981 SC 1786. The question is whether a Letters Patent Appeal lies to a Division Bench under Clause 15 of the Letters Patent (Madras) as applicable to Andhra Pradesh High Court against an order of a learned single Judge refusing to review under Order 47 Rule 4(1) CPC and whether Or. 47 R. 7(1) is a bar to the maintainability of such an appeal. The Division Bench thought that what the Supreme Court, they thought stated in the above case in the context of the bar created in S. 104(2) CPC to the maintainability of Letters Patent Appeals equally applied to a similar bar created in Order 47 Rule 7(1) CPC. They also thought that the Full Bench in Sattemma's case (1 supra) had wrongly quoted what the Supreme Court had actually decided in another case in Union of India v. Mohinder Supply Co., (3) AIR 1962 SC 256. The Division Bench further observed that the decision rendered Amruthappa… v. Abdul Rasool…. (4) 1987 (2) APLJ 27 by one of us (Jagannadha Rao J.) which was approved by a Division Bench in G. Seshamma v. G. Rajaratnam (5) 1989 (1) ALT 122 holding that no Letters Patent Appeals lay in view of Sec. 104(2) CPC against orders passed by learned single Judges of this court in appeals against orders under S. 104(1) read with Or. 43 R. 1 CPC was correct. If a Letters Patent Appeal lies the further question will be whether an order refusing to review an order dismissing a Writ Petition is a judgment for purposes of Clause 15 of the Letters Patent.

2. Before going into the questions raised in the reference it will be appropriate to state the facts. The writ petitioner passed, the common entrance examination in 1988 conducted for admission to the B.E course and claimed selection as a candidate belonging to Scheduled Tribe Konda Kapu. He was selected and given a seat in B.E (Electronics) subject to verification of his social status as a Member of the Scheduled Tribe by the Director of Social Welfare. There was same litigation thereafter but the ultimate position was that the petitioner was given a show-cause notice by the said Director, the petitioner submitted his explanation and documentary evidence. Thereafter the Director passed an order, dated 11-11-88 holding that the petitioner does not belong to Scheduled Tribe Even before that order was passed the present writ petition was filed seeking admission to B.E course and later on the relief was amended in WPMP No. 22781/88 for quashing the said order of the Director dated 11-11-88. The writ petition was dismissed on 3-8-89 on merits. Then the petitioner filed a review petition Rev. W.P.M.P No. 15100 of 89 and the same was dismissed on merits by orders dated 17-9-89. It is against the said order that the present writ appeal is filed under Clause 15 of the Letters Patent when the objection as to its maintainability was taken by the 1st respondent invoking Or. 47 R. 7 C.P.C Then the present reference was made. Learned counsel for the appellant Sri Duba Mohan Rao contended that the decision of the Full Bench in Sattemma's case (1 supra) was correct and that the right conferred by Clause 15 of the Letters Patent was an independent right and was in no way affected either by the bar created in Or. 47 R. 7 CPC or even the bar created in Sec. 104(2) CPC According to him the propositions of law ultimately listed by the Supreme Court in Shah Babulal Khimji's case (2 supra) should be treated as the law laid down therein and viewed in that light both Amruthappa… v. Abdul Rasool…. (4 supra) and G. Seshamma v. G. Rajaratnam (5 supra) were wrongly decided. He also relied upon the decision of the Supreme Court in State of U.P v. Vijay Anand (6) AIR 1963 SC 946 for holding that an order refusing to review an earlier order is a judgment for purposes of Clause 15 of the Letters Patent. On the other hand it is contended by the learned counsel for the 1st respondent Sri Y. Suryanarayana and Sri Naik the learned Government Pleader that the above contentions cannot be accepted.

3. The following points therefore arise for consideration.

(1) Whether the order passed by the learned single Judge in a review petition refusing to review an order of dismissal of a writ petition is a judgment for purposes of Clause 15 of the Letters Patent?

(2) Whether a Letters Patent Appeal filed against order of a learned Single Judge refusing to review an order of dismissal of a writ petition is barred by Or. 47 R. 7(1) CPC on the analogy of the provisions in S. 104(2) CPC as construed by the Supreme Court in Shah Babulal Khimji's Case (2 supra)?

4. Point No. 1 It is not disputed that the writ jurisdiction under Art. 226 of the Constitution of India is the extraordinary original jurisdiction of this Court and that after the dismissal of the writ petition the petitioner could file a review petition under Or. 47 R. 1 CPC in view of the provisions of Rule 24 of the Writ Rules (framed under Art. 226 of the Constitution of India) permitting such a course. That rule states—

“All other rules relating to causes and matters coming before the Original Side and Appellate side of the High Court and the provisions of the Code of Civil Procedure 1908 will apply to the writ petitions and the writ appeals in so far as they are not inconsistent with these rules”.

5. The review petition in the present case has been filed under Or. 47 R. 1 CPC because of the above referred Rule 24 in the writ rules. The review petition has been dismissed under Or. 47 R. 4(1) CPC. The question is whether the said order amounts to a ‘judgment’ under Clause 15 of the Letters Patent.

6. It is necessary to refer to Clause 15 of the Letters Patent (Madras) 1862 which is applicable to this Court. It reads as follows—

“Clause 15: Appeal from the Courts of origing jurisdiction to the High Court in its appellate jurisdiction:— And we do further ordain that an appeal shall lie to the said High Court of Judicature at (Madras), (Bombay) (Fort William in Bengal) from judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Sec. 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court pursuant to S. 108 of the Government of India Act and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of the Division Court pursuant to S. 108 of the Government of India Act made (on or after the first day of February 1929) 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 cause is a fit one for appeal but that the right of appeal from ether judgments of Judges of the said High Court or such Division Court shall be to us our heirs or successors in our or Their Privy Council as hereinafter provided.”

7. The above provision in Clause 15 generally shows that against a ‘judgment’ passed by a learned Single Judge of the High Court in the original jurisdiction or first appellate jurisdiction a Letters Patent Appeal lies to a Division Bench. If the judgment is passed in second appellate jurisdiction a Letters Patent Appeal would lie only if the said Judge certified the case to be a fit one for such further appeal. So far as the latter provision regarding appeals against second appeals is concerned the same has been taken a wary by Sec. 100-A introduced by the Central Act 104/76.

8. The question whether an order refusing to review an earlier order amounts to a judgment for purposes of Clause 15 of the Letters Patent fell for consideration before the Supreme Court in State of U.P v. Vijayanand (6 supra). That was no doubt the case of an order refusing to review but was passed not under Or. 47 R. 4(1) CPC but under the provisions of Sec. 11 of the U.P Act 14 of 1956 amending the U.P Agricultural Income Tax Act 1948 (Act 3/49). The provisions of Sec. 11 of the said Act permitted the filing of a review petition before any Court or authority if the said Court or authority had set aside any order of assessment by an Additional Collector or Additional Assistant Collector on the ground that the said authorities had no Jurisdiction to make an assessment. In the case before the Supreme Court the position was that a learned Single Judge of the High Court had allowed the writ petition filed by the respondent on the ground that the Additional Collector had no jurisdiction to lake the assessment. This was on 22-11-55. On 9-2-56 the U.P Ordinance (which was later replaced by U.P Act 14/1956) was passed validating the earlier assessments made by the Additional Collector and the Assistant Collector and also permitting the tax authorities to apply for review as stated above. The review application so filed by the State before the learned Single Judge was dismissed on the ground that the provisions of Sec. 11 did not enable a review application to be filed in proceedings disposed of under Art. 226 of the Constitution of India. When the State preferred an appeal to a Division Bench against the said order dismissing the review petition it was dismissed as not maintainable. On further appeal the Supreme Court held that the impugned order dismissing the review petition was a ‘judgment’ for purposes of Clause 10 of the Letters Patent (Allahabad) which is similar to Clause, 15 of the Letters Patent of Calcutta, Madras and Bombay. The Supreme Court however dismissed the Appeal on other grounds. It held that the provisions of Sec. 11 of the U.P Act did not permit an application for review where the High Court had set aside the assessments under Art. 226 of the Constitution. It observed that the jurisdiction under Art. 226 was original jurisdiction as opposed to appellate or revisional jurisdiction and that Sec. 11 did not apply to cases disposed of under the Original Jurisdiction of the High Court. The Supreme Court held that the application filed under Sec. 11 in the High Court was not maintainable and also that it could not after long lapse of time be treated as an application filed under Or. 47 R. 1 CPC in the High Court. Subba Rao J. (as he then was) observed: (see para 7)

“The decision of Mehrotra J. dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the Amending Act. We therefore, hold that the order of the Mehrotra J. dismissing the application filed for review of his earlier order on the ground that Sec. 11 of the Act did not confer any such right on the appellants was a ‘judgment’ within the meaning of Clause 10 of the Letters Patent”.

9. This decision, therefore to a large extent, supports the appellant that an order refusing to review if it denied the particular right claimed, would be a ‘judgment’. The Supreme Court no doubt, observed (see para 12) that they were not treating the order of the Single Judge as an order under Or 47 CPC and further stated they were not deciding whether an order under Or 47 could be appealed against before a Division Bench.

10. The above said decision has been re-affirmed by the Supreme Court in Shah Babulal Khimiji's case (2 supra) (See para 103) and the Court went on further to observe that even an order dismissing a review application under Or. 47 R. 4(1) CPC will be a ‘judgment’. This is because an order allowing a review petition is made appealable under Or. 43 R. 1(W) and therefore an order dismissing a review petition is also appealable on that analogy. The Supreme Court observed.

“We might mention here that under Clause (W) of Or. 43 R. 1 an order granting an application for review is appealable. On a parity of reasoning therefore an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under Or. 43 Rule 1.”

11. Of course, the order refusing to review must be a ‘judgment’ as per the tests referred to in Shah Babulal Khimiji's case (2 supra). In the present case the order refusing to review is an order which refuses to accept the petitioner's case that he belongs to a Schedule Tribe and in, our view there can be no doubt that it is a ‘judgment’ as per the above tests. We accordingly hold in favour of the appellant that the order impugned in the Letters Patent Appeal is a ‘judgment’. Point No: 1 is decided accordingly infavour of the appellant.

12. Point No. 2:— The order dismissing the writ petition was passed by the learned Single Judge under the original jurisdiction of the Court in Art. 226 of the Constitution of India. The order thereafter passed refusing to review is passed by the learned single Judge under Or. 47 R. 4(1) read with Rule 24 of the Writ Rules. The question is whether Or. 47 R. 7(1) CPC is a bar to the maintainability of a Letters Patent Appeal. Or. 47, R. 7(1) CPC reads as follows:—

“Or. 47 R. 7(1):— An order of the Court rejecting the application shall not be appealable……”

13. The argument for the respondent is that the prohibition contained in Or. 47, R. 7(1) CPC applies not only in regard to appeals which could otherwise have been preferred under the Code of Civil Procedure but also to appeals under Clause 15 of the Letters Patent. Reliance for this purpose is placed on Shah Babulal Khimiji's case (2 supra) and it is argued that Or. 47 R. 7(1) CPC is similar to Sec. 104(2) CPC. We shall therefore deal with Shah Babulal Khimiji's case (2 supra).

14. There, the suit was filed on the original side of the High Court and pending suit the plaintiff applied for appointment of a Receiver and for an injunction restraining the defendant from alienating the property. The said application was rejected by the learned Single Judge of the High Court. The plaintiff preferred an appeal under Clause 15 of the Letters Patent and at that stage the respondent raised an objection as to its maintainability. The learned Single Judge held that in as much as the order was not a ‘judgment’ as it did not decide any rights of the parties no appeal lay to a Division Bench. It was then argued that an appeal lay under Sec. 104(1) read with Or. 43 R. 1 CPC as an appeal was maintainable against an order refusing to appoint a receiver or to grant an injunction. The letter contention was rejected by both the majority and minority of the Judges in Shah Babulal Khimji's case (2 supra) holding (1) that Sec. 104(1) read with Or. 43 R. 1 CPC was an additional right conferred on the litigant and in case an order was not appealable under Clause 15 of the Letters Patent an appeal could still be preferred under Sec. 104(1) read with Or. 43 R. 1 CPC. It was also held that in cases where the order was a ‘judgment’ it was not further necessary that order should belong to one of the enumerated categories in Sec. 104(1) Or. Or 43 R. 1 CPC. It was sufficient that the order was a ‘judgment’ within the meaning of the said word in Clause 15 of the Letter Patent and it did not matter whether it was one of the items enumerated in Sec. 104(1) and Or. 43 R. 1 CPC or not. It was in fact observed that almost all the categories of cases enumerated in Or. 43 R. 1 CPC were ‘judgments’ and could be appealed against under Clause 15 of the Letter Patent (see para 55 in Shah Babulal Khimji's case (2 supra) The foundation for the above view of the Supreme Court is the decision of the Privy Council in Hurrish Chunder Chowdary v. Kali Sundari Debhi (7) (1882) 10 IA 4 : ILR 9 Cal 482 (PC) wherein the Privy Council observed as follows:

“It only remains to observe that their Lordships do not think that Sec. 588 of the Act X 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”;

15. It is therefore, clear that the provisions of Or. 43 R. 1 CPC are in addition to the provisions of Clause 15 of the Letters Patent and for the purpose of appeal ability to a Division Bench the condition it that order of the Single Judge must be a ‘judgment’.

16. It is, however argued for the respondent that the Supreme Court observed in certain paragraphs of the ‘judgment’ in Shah Babulal Khimji's case (2 supra) referred to above that Sec. 104(2) was a bar to the maintainability of appeals against orders passed by learned Single Judges while exercising appellate jurisdiction under Sec. 104(1) read with Or. 43 R. 1 CPC and that Or. 47 R. 7(1) CPC is similar to Sec. 104(2). We may say that the passages relied upon are those in paras 39. 41 and 43. In fact these very passages have been relied upon in Amrutappa v. Abdul Rasool (4 supra) which has been approved in G. Sheshamma v. G. Rajaratnam (5 supra). It has been held in these two cases that the Supreme Court has held that no further appeal lies against an orders passed by a learned Single Judge of the High Court while exercising first appellate jurisdiction under Sec. 104(1) read with Or. 43 R. 1 CPC and that Sec. 104(2) barred not only appeals under the Code but also appeals under Clause 15 of the Letters Patent. It is in fact on the basis of these decisions that the Division Bench has made this reference.

17. We have examined the majority judgment of the Supreme Court in Shah Babulal Khimji's case's (2 supra) closely. The judgment broadly accepts that if a Single Judge in exercise of original jurisdiction passes an interlocutory order in a suit a Letters Patent Appeal lies therefrom if it is a ‘judgment’ and that in cases where it is not a ‘judgment’ an appeal to a Division Bench can also lie under Sec. 104(1) read with Or. 43 R. 1 CPC. They further held (para 65) that in such cases there is no question of Sec. 104(2) coming into play because the Letters Patent does not say that there will be a further appeal to the Full Court against the appellate order of the Division Bench in the Letters Patent Appeal. The question of applying or not applying Sec. 104(2) arises only when the Single Judge has passed orders in exercise of first appellate jurisdiction under Sec. 104(1) read with Or. 43, R. 1 CPC. The question however is whether in the latter class of cases Sec. 104(2) barred appeals under the Code as also Letters Patent Appeals.

18. No doubt the passages in paras 39, 41 and 43 of the judgment in Shah Babulal Khimji's case (2 supra) lend colour to the view that the Supreme Court held that no Letters Patent Appeal lay against orders passed by learned Single Judges in their first appellate jurisdiction under Sec. 104(1) read with Or. 43. R. 1 CPC. But there are equally several other passages in the same judgment including several extracts from cases which are approved by the Supreme Court which do support the opposite contention that Sec. 104(2) did not bar Letters Patent Appeals but merely barred further appeals under the Code. These latter passages and extracts to which we shall, presently refer read along with the ‘final conclusions’ set out in para 79 of the judgment in our view lend strong support to the view that Letters Patent Appeals are not barred under Section 104(2) even in respect of orders passed by learned Single Judges under Sec. 104(1) read with Or. 43 R. 1 CPC. These other passage and the final conclusions in the judgment of the Supreme Court have not been referred to either in Amruthappa… v. Abdul Rasool…. (4 supra) or in G. Seshamma v. G. Rajaratnam (5 supra).

19. Read in the light of these passages and final conclusions suggesting that a Letters Patent Appeal is not barred under Section 104(2) for filing appeals (against orders of learned Single Judges passed under Section 104(1) read with Order 43, Rule 1, CPC), it can in our view, be said that the Supreme Court merely held in paras 39, 41 and 43, that no further appeal lay if the said orders of single Judges under Section 104(1) read with Order 43, Rule 1, CPC are mere ‘orders’ and did not, on facts, amount to ‘judgments’ as understood in Clause 15 of the Letters Patent. We shall now refer to these other passages and final conclusions of the Supreme Court.

20. Firstly, the Supreme Court pointed out that the High Courts of Calcutta, Bombay and Madras too treated Section 588, CPC of the 1877 Code as providing appeals in addition to Clause 15 of the Letters Patent and that it was not as if Letters Patent Appeals lay only in respect of the restricted categories enumerate in Section 588 CPC. These are: Toolsee Money Dassee v. Sudevi Dasi (8) (1899) ILR 26 Cal 363 Secretary of State v. Jehangir (9) (1902) ILR 4 Bom 342 Chappan v. Moidin Kutti (10) (1899) ILR 22 Mad 68. It was held that (see para 19)

“Those orders of the Trial Judge which fell beyond Sec. 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of Clause 15 of the Letters Patent. Therefore, the view taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct.”

21. It was observed that under the new CPC of 1908, Section 104(1) contained words saving the maintainability of appeals otherwise expressly allowed by the Code or by any other law for the time being in force and that this was done in acceptance of the views of the above said three High Courts as against the earlier Allahabad view in Banno Bibi v. Mehdi Hussain (11) 1989 ILR 11 All 375 Muhammad Naimatullah Khan v. Insanullah Khan (12) (1892) ILR 14 All 226 and these Allahabad decisions were not correct.

22. Secondly, in para 37, the Supreme Court (which has earlier approved the Calcutta. Bombay and Madras views as against the Allahabad views) approved the correctness of the decision of the Lahore High Court in Ruldu Singh v. Sanwal Singh (13) AIR 1922 Lah 380 where Sir Shadi Lal C.J observed as follows:

“Now, Section 588 of the old Code, which has how been replaced by Section 104 and Order XLIII, Rule 1 of the new Code, enacted that an appeal lay from the orders specified in that section and ‘from no other orders’; and it was consequently decided by a Full Bench of that Court in Muhammad Naimtullah Khan v. Insanulla Khan (12 supra) that Class 10 of the Letters Patent was controlled in its operation by Section 588, and that no appeal lay under the Letters Patent from an order made under Code if it was not one of the orders enumerated in that section, section 104 of the new Code however, expressly saves the right of appeal otherwise provided by any law for the time being in force’…………………It seems to us that the object of the Legislature in enacting sub-section (2) was to make it clear that there was no second appeal under the Code from the orders specified in sub-section (1) of Section 104 and that sub-section (2) was not intended to over-ride the express provisions of the Letters Patent.”

23. It will be necessary to note that the Supreme Court approved the words which we have underlined in the above passage in the judgment of the Lahore High Court, it will be convenient to notice the facts in the Lahore case. That was not a case of an internal appeal arising within the High Court (say) on the original side. The lower appellate Court had then remanded the suit for fresh disposal and the order of remand was confined by the learned Single Judge. In other words the order of the learned Single Judge was an order confirming the order of remand passed by the lower appellate Court. The aggrieved party was held entitled to file a Letters Patent appeal under Clause 15 and that Sec. 104 was not a bar. The following passage from the judgment of Shadi Lal C.J as extracted by the Supreme Court is clear enough:

“It seems to us that…………Sub-section (2) (of Sec. 104) was not intended to over-ride the express provisions of the Letters Patent.”

24. Thirdly the Madras High Court's view in Chappan v. Moidin Kutti (10 supra) was approved and the Supreme Court again referred to that case in para 44 and paras 74 to 77. It will be useful to refer to the facts of that case also. There the High Court was dealing with a revision under Sec. 622 of the Code (corresponding to the present Sec. 115, CPC) and the revision arose out of an order seeking refund of sale consideration paid in a court in the execution proceedings. A revision was preferred as the order was not an appealable order. The question arose whether the order of the Single Judge passed in the revision could be further appealed against under Clause 15 of the Letters Patent treating revisional jurisdiction as part and parcel of appellate jurisdiction. It was held by the majority of the six Judges Full Bench that a Letters Patent Appeal lay. (The Letters Patent was amended in March, 1919 providing that no appeal would be against orders made in the revisional jurisdiction). We are mentioning the facts of the Madras case only to show that was not a case arising out of the original jurisdiction of the High Court but was a case arising under revisional jurisdiction which was treated as appellate jurisdiction. It was held that Letters Patent Appeal under Clause 15 lay if the order in the revision amounted to a judgment. Shephard J. observed (para 80) that an appeal lay under Clause 15 of Letter Patent, and that he agreed with Subrahmanya Ayyar, J. that the said right of appeal was not taken away by Sec. 588 of 1877 (corresponding to Sec. 104). Subrahmanya Ayyar, J. clarified (para 84) as follows:

“If I am right in the view that appellate jurisdiction includes revisional powers, it follows that against an order passed under Sec. 622 an appeal lies if the particular order amounts to a judgment within the meaning of Clause 15 of the Letter Patent; unless the said clause has as contended before us been modified by Sec. 588 of the Code of Civil Procedure This contention is however opposed to the ruling of the Judicial Committee in Hurrish Chunder Chowdary v. Kabi Sundari Debia (7 supra) in which their Lordships laid down that section does apply to a case such as the present where the appeal is from one of the Judges of the Court to the Full Court. I am unable to persuade myself as I have already stated on a previous occasion that the observations of the Committee on the point are mere obiter dicta. The contention that Sec. 588 modified Clause 15 was not only distinctly raised but was also strongly pressed by Counsel in the argument. Their Lordships had, therefore to give a decision upon the soundness or unsoundness of the contention. That it appears to me, they did in unmistakable terms.”

25. Boddam J. (see page 92-93) agreed with this view that if the order of the Single Judge amounted to a ‘judgment’ a further appeal lay. Moore, J. observed (para 97).

“It appears to me to be very difficult to understand why if the Legislature intended Secs. 588, 591 and 629 to take away the right of appeal from decisions of Single Judges of the High Court granted by Sec. 15 of the Letters Patent this very important change in the law was not made by clear and distinct enactment. If it was intended that the right of appeal given by Sec. 15 of the Letters Patent from all judgments of a Single Judge should be taken away it is only reasonable to presume that the Code would have gone further and provided………”

26. The above passages from the Full Bench of the Madras High Court in Chappan's case (10 supra) must in our view be taken to have been accepted by the Supreme Court when it affirmed the correctness of the said Full Bench in several paragraphs of its judgment referred to earlier. In fact, these views of the Madras Full Bench are similar to the observations extracted from the judgment of the Lahore High Court in Ruldu Singh case's (13 supra).

27. Further in para 55 of the Judgment the majority of the Supreme Court accepted the contention of the appellant that most of the orders including orders under Or. 40 R. 1, in Or. 43 R. 1 CPC amount to ‘judgments’ and could be appealed against under Class 15 as such. We may add that if these orders could be ‘judgments’ if passed by the trial Judge in an original suit there is no reason as to why similar orders passed in first appellate jurisdiction should not be appcable. For that matter all ‘judgments, are appealable under Clause 15 irrespective of Sec. 104.

28. If therefore the view of the Madras High Court in Chappen case (10 supra) and of the Lahore High Court in Ruldu Singh case (13 supra) have been approved by the Supreme Court can it be said that the Majority of the Supreme Court in Shah Babulal Khimji's case (2 supra) held that because of Sec. 104(2) no Letters Patent Appeal lay against first appellate orders passed by Learned Single Judges under Sec. 104(1) read with Or. 43 R. 1 CPC?

29. In our view the matter has to be considered in the light of the ultimate conclusions of the majority which are set out in para 79 of the judgment, as follows:

“(1) That there is no inconsistency between Sec. 104 read with Or. 43 R. 1 and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of Sec. 104 read with Or. 43 R. 1 or to show that these provisions would not apply to internal appeals within the High Court.

(2) That even if it be assumed that Or. 43 R. 1 does not appely to Letters Patent appeals the principles governing these provisions apply by process of and logy.

(3) That having regard to the nature of the orders contemplated in the various clauses Or. 43, R. 1 there can be no doubt that those orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that those orders do possess the attributes or character of finality so as to be judgments within the meaning of Cl. 15 of the Letters Patent and hence, appealable to a larger Bench.

(4) The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position.”

30. From the above passages and final conclusions it appears to us that the Supreme Court in Shah Babulal Khimij's case (2 supra) stated that the bar in Sec. 104(2) CPC only means that there will be no further appeals against ‘orders’ passed by learned Single Judges under Sec. 104(1) CPC read with Or. 43 R. 1 CPC if the orders so passed did not have the character of ‘judgments’ within the meaning of the said words in Clause 15 of the Letters Patent. If Clause 15 of the Letters Patent is an independent source of power conferred on learned Single Judges of the High Court and is restricted or controlled by Sec. 104 CPC as held by the Supreme Court (see paras 18, 19, 28, 30, 32, 33, 55, 56) in Shah Babulal Khimji's case (2 supra) the order (say) appointing or refusing to appoint a Receiver or granting or refusing to grant an injunction is a ‘judgment’ whether passed by the Single Judge of the High Court in exercise of original jurisdiction or in exercise of first appellate jurisdiction under Sec. 104(1) CPG read with Or. 43 R. 1 CPC. Therefore the passages in paras 38, 39, 40, 41 and 43 lending colour to the opposite view can only be understood as stating that under Sec. 104(2) CPC what is barred is a further appeal under the Code but not under the Letters Patent if such order passed by the learned Single Judge is a judgment Letters Patent. Appeal would be barred only to the extent expressly barred in Clause 15 of the Letters Patent and by any other law such as Sec. 100-A CPC.

31. It is argued for the respondents that though the Supreme Court approved the Madras view in Chappan v. Moidin Kutti (10 supra) and the Lahore view in Ruldu Singh v. Sanwal Singh (13 supra) it has clearly disagreed with the judgment of the Allahabad High Court in Ram Sarup v. Kaniz Ummeshani (14) AIR 1937 All. 165 where the Allahabad High Court held that Letters Patent Appeals lie against orders passed by learned Single Judges exercising jurisdiction under Sec. 104(1) CPC read with Or. 43 R. 1 CPC (see para 38 of the Supreme Court judgment). It is also pointed out that it was in this context that the Supreme Court approved earlier Allahabad cases in Muhammad Naintullah Khan v. Insanullah Khan (12 supra) and Piari Lal v. Madan Lal (15) (1917) ILR 39 All. 191 : AIR 1917 All 325 (2) (See paras 41, 42 the Supreme Court judgment).

32. On the other hand it is argued for the appellant that the passage from the Allahabad judgment in Ram Sarup v. Kaniz Ummeshani (14 supra) which has been disapproved by the Supreme Court in para 38 of the judgment is almost identical with the passage in the same judgment in para 37 wherein the Lahore judgment in Ruldu Singh v. Sanwal Singh (13 supra) is approved. It is also argued for the appellant that these very earlier Allahabad case Muhammad Naimtullah Khan v. Insanullah Khan (12 supra) and an earlier decision in Banno Bibi v. Mehdi Hussain (11 supra) taking the same view were disapproved in para 19 of the same judgment.

33. On a close examination of these passages read along with the other passages approving the Madras Full Bench in Chappan v. Moidin Kutti (10 supra) and the Lahore view in Ruldu Singh v. Sanwal Singh (13 supra) and the final conclusions set out in para 79 of the judgment we are of the following view:

34. The proper way of reconciling the several paragraphs in the judgment is to hold that the Supreme Court accepted that Clause 15 of the Letter Patent gave an independent jurisdiction conferring right of Appeal against Judgments of learned Single Judges of the High Court whether passed in original jurisdiction or first appellate jurisdiction under Sec. 103(1) read with Or. 43 R. 1 CPC. The only condition is that these orders must amount to judgments as understood in Clause 15 of the Letters Patent. Sec. 104(2) is intended to bar further appeals under the Code and is not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters. Patent against judgments of learned Single Judges whether passed in original or first appellate jurisdiction under Sec. 104(1) read with Or. 43 R. 1 CPC. If therefore both Sec. 101(1) and Sec. 104(2) are not intended to restrict or control the right of appeal conferred by Clause 15 of the Letters Patent it cannot by any parity of reasoning be held that Or. 47 R. 7(1) has also been intended to bar Letters Patent Appeals against orders of learned Single Judge refusing to review an earlier order provided the orders amounted to Judgments as understood under Clause 15 of the Letters Patent; Or. 47 R. 7(1) CPC would bar appeals under the Code of Civil Procedure to the extent where the orders refusing a review did not amount to judgments. The ultimate test is whether the order is a ‘judgment’ as understood in Clause 15 of Letters Patent. If it is a ‘judgment’ neither Sec. 104(2) nor Or. 47 R. 7(1) would bar a Letters Patent Appeal. Point No. 2 is decided accordingly. For the aforesaid reasons we respectfully dissent from the judgment of the Bombay High Court in Obedua Rehman v. Ahmedali Bharucha (16) AIR 1983 Bombay 120 and of the Gujarat High Court in Madhusudan Vegetable Products Co. Ltd. v. Rupa Chemicals (17) AIR 1986 Gujarat 156 wherein the said Courts understood the Supreme Court judgment in Shah Babulal Khimji's case (2 supra) as holding that no Letters Patent Appeal is maintainable against appellate orders of leanred Single Judges while disposing of appeals under Sec. 104(1) read with Or. 43 R. 1 CPC. We also respectfully dissent from the Full Bench decision of the Kerala High Court in Mr. Abraham Mathews v. Illani Pillai (18) AIR 1981 Ker 128 (F.B) rendered with reference to Sec. 5(ii) of Kerala High Court Act (5/1959) which took a similar view even before the Supreme Court decided the question. The reasons given by the Bench that if a further appeal is to be held maintainable there would be further delay in reaching finality does not appeal to us.

35. Reference is ordered accordingly.