Qazi, J.:— The present Letters Patent Appeal arises out of the judgment in A.O 26 of 1975 decided by the single Judge of this Court Palshikar J. as he then was, rejecting the prayer of the plaintiff-appellant for appointment of a Receiver.
2. The facts which gave rise to the present Letters Patent Appeal may be stated, in brief, as under:
There is a public trust known as “Shri Balaji Sansthan” Deulgaon Raja in Buldana district. On 25-10-1961, the District Judge, Buldana, framed a scheme for administration of the said trust. Under the scheme present respondent No. 1 was appointed as hereditary trustee and also a Managing trustee. He was invested with all the powers to exercise all the rights as Managing Trustee as per the scheme and in accordance with the directions of the District Judge, Buldana, given to him from time to time. However, it appears that there were complaints about the management of the trust, which led to filing of a civil suit by the appellant Charity Commissioner, under section 50 of the Bombay Public Trusts Act, claiming the relief of removal of trustee and appointment of a new trustee and framing of a fresh scheme for managing the trust. The Charity Commissioner filed two applications one for temporary injunction restraining the Managing trustee from interfering with the management of the trust, and the second for appointment of a Receiver.
3. Initially, both these applications were granted by the District Judge, Buldana, but later on the High Court transferred the suit from the file of the District Judge to the file of the Joint District Judge. However, the High Court directed that till the applications are decided afresh by the Joint District Judge, the injunction and appointment of Receiver should continue. Ultimately, the Joint District Judge, by his order dated 12th March 1975 dismissed both the applications. The Charity Commissioner challenged that order before the High Court by way of appeal against order. It was registered as A.O No. 26 of 1975. The matter came up for hearing before Palshikar J., as he then was. It appears that the only question that was agitated before the single Judge was about the appointment of Receiver. The learned single Judge came to the conclusion that there was not much substance in the application of the Charity Commissioner for appointment of a Receiver. The learned single Judge recorded a finding that the Charity Commissioner was unable to point out any act of misappropriation or wastage of property and hence according to the learned single Judge the circumstances did not warrant appointment of a Receiver. The learned single Judge also referred to the Audit Report, which, according to him, clearly shows that the accounts were properly maintained. Thus, he confirmed the order of the Joint District Judge and dismissed the appeal. While dismissing the appeal, he gave a direction that the Receiver should hand over the charge to the Managing Trustee within a month from the date of the order. It is this order which is being challenged by way of letters patent.
4. It is not necessary for us to enter into the merits since the appeal can be disposed of on a preliminary ground raised by Mr. Kukdey about its tenability. He has invited our attention to the decision of this Court reported in 1982 Mah LJ 283 : (AIR 1983 Bom 120) (Obedure Rahman v. Ahmedali Bharucha). According to Mr. Kukday, the appeal which was filed before the single Judge of this Court was under S. 104 read with O. 43 R. 1 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for short) and hence the bar of S. 104(2) would apply.
5. Mr. Jaiswal has vehemently argued that the Letters Patent Appeal is maintainable. He has relied on the decisions reported in AIR 1981 SC 1786 (Shah Babulal Khimji v. Jayaben D. Kania) and AIR 1962 SC 256 (Union Of India v. Mohindra Supply Co. ). According to Mr. Jaiswal, Letters Patent is a Special Law which is not controlled by the provisions of the Code and, therefore, the bar of section 104(2) would not apply to the Letters Patent Appeals. Mr. Kukday has heavily relied on the decision reported in AIR 1981 SC 1786 (cited supra). We may reproduce the relevant portions from paras 43 and 79, which, in our view, clinch the issue;
“43. Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed by the District Judge under O. 43, R. 1 a further appeal under the Letters Patent was not maintainable. This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched, as referred to above.”
“79. Thus, after considering the arguments of counsel for the parties on the first two limbs of the questions, our conclusions are:—
1) That there is no inconsistency between S. 104 read with O. 43 R. 1 and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excluded or overrides the application of S. 104 read with O. 43, R. 1 or to show that these provisions would not apply to internal appeals within the High Court.”
6. There is no dispute that the appeal which was filed by the Charity Commissioner before the single Judge of this Court was filed under S. 104(1) read with O. 43, R. 1(s) of the Code and, therefore, by no stretch of imagination it can be said that the impugned order is not an order passed in appeal under S. 104 of the Code. Hence, the bar in the matter of appeal as provided under sub-sec. (2) of S. 104 must apply. This issue is already concluded by the decision of this Court reported in 1982 Mah LJ 283. In that decision, this Court has referred to the decision reported in AIR 1981 SC 1786. This Court has held—
“As far as clause 15 of the Letters Patent is concerned, in our opinion, the provisions of S. 104 are attracted and it is applicable to the letters Patent Appeals also. Because the Letters Patent Appeals cannot be said to be an exception and override the provisions of the Code of Civil Procedure.”
The decision also refers to clause 37 of the Letters Patent, which provides that the Letters Patent will be guided by Code of Civil Procedure, while making the rules by the High Court and can be altered by the competent Legislature. It has been further observed that the right of appeal is not inherent right of the aggrieved party. It is the creature of statute and, therefore, it can be taken away by statute.
7. Mr. Jaiswal has invited our attention to S. 100A of the Code, which reads as under:—
“Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.”
Relying on these observations, Mr. Jaiswal has argued that had the Legislature intended to exclude clause 15 of the Letters Patent in regard to S. 104 of the Code, then the provisions similar to the ones quoted supra would have been added to S. 104 of the Code. In our view, this analogy is wholly irrelevant. section 100a of the code bars Letters Patent Appeals against the decision in second appeal. Under the Letters Patent, appeals lie in certain cases against the decision of a single Judge in a second appeal. Such appeals in effect amount to a third appeal and, therefore, section 100A is added so that there shall be no third appeal in any case. The same purpose is sought to be achieved by sub-section (2) of S. 104 of the Code that in no case an appeal shall lie from any order passed in appeal under S. 104 of the Code. Any other interpretation would render sub-sec. (2) of S. 104 of the Code nugatory and such interpretation would be contrary to all canons of interpretation. We see no substance in the appeal and the same is dismissed. It appears that this court while admitting the appeal granted stay for continuance of Receiver. Since the appeal is being dismissed, the stay order passed by this Court also stands vacated. No order as to costs.
Appeal dismissed.