1. An appeal was preferred to this court by the respondents against an order of the trial court allowing an application under Order 39, Rules 1 and 2 of the C. P. C. A Learned single Judge of this Court, by his order dated 28-3-86, reversed the order of the trial Court and dismissed the application made by the appellant. It is against this order that the present L. P. A. has been preferred.
2. A preliminary objection has been raised by counsel for the respondents that this appeal is not maintainable. In support of this objection, reliance has been placed on the decision of a D. B. of this Court in (Shri Kunwarji Sonker v. Nirmalchand Sonkar L. P. A. No. 151/85 D/- on 17-1-1986. Counsel for the appellant urged that the view taken in the aforesaid L. P. A. is in the teeth of the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786, and as such, cannot be taken to be good law. It is not a case where the decision of the Supreme Court supra may not have been considered by this Court while deciding L. P. A. No. 151/85. On the other hand, the said case has been considered and distinguished. We are in respectful agreement with the view taken in L. P. A. No. 151/85 aforesaid.
3. Counsel for the appellant has placed reliance on para 123 of the Supreme Court Decision referred to above. In that para, it was held as under : -
"In the instant case, as the order of the trial Judge as one refusing appointment of a receiver and grant of an ad interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, Order 43, Rule I applies to internal appeals in the High Court and apart from it, such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent. The consistent view (aken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of Clause 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision."
4. It has been urged by counsel for the appellant on its basis that since Clause 10 of the Letters Patent of the M. P. High Court is in pari materia with Clause 15 of the Letters Patent of the Bombay High Court, the law laid down by the Supreme Court in Shah Babula's case (AIR 1981 SC 1786) (supra) will apply even to the decisions of this Court holding that an order refusing appointment of a receiver or granting an interim injunction, would not amount to a judgment, and as such those decisions cannot be taken to be good law. No exception can now be taken so far as this proposition of law is concerned in view of the decision of the Supreme Court in case of Shah Babulal Supra. The hurdle in the way of the appellants, however, is not that the order of the learned single Judge would not amount to a judgment, but the hurdle is whether the appellants are entitled to prefer a second appeal, so to speak, against an order granting or refusing to grant an ad interim injunction under the provisions of Order 39 Rules 1 and 2 of the C. P. C. In Shah Babulal's case supra, the Supreme Court has emphasised that there is no inconsistency between Section 104 read with Order 43 Rule 1 C.P.C. 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 Section 104 read with Order 43 Rule 1 C.P.C. or to show that these provisions would not apply to internal appeals in the High Court. In other words, what the Supreme Court has laid down in that provision of Section 104 read with Order 43 Rule I C.P.C. apply even to internal appeals, viz. Letters Patent Appeals in the High Court.
5. The effect of the aforesaid decision is that if an order has been passed by a learned single Judge of the High Court either appointing a receiver or granting or refusing injunction under Order 39 Rules 1 and 2 in some original proceedings, letters patent appeal would lie against that order treating it to be a judgment. The Supreme Court, however, does not go a step further and say that if the order passed by the High Court was not an original order, but had been passed in exercise of its appellate jurisdiction u/s. 104 read with 0.43, Rule 1 C.P.C., even then a letters patent appeal would lie. Indeed such an argument is not open on the clear language of Sub-section (2) of Section 104 C.P.C., which has been held by the Supreme Court to be applicable to a letters patent appeal. Sub-section (2) of Section 104 provides that no appeal shall lie from any order passed in appeal under this section.
6. In the instant case, the present appeal is admittedly against an order of a learned single Judge passed in appeal u/S. 104 read with Order 43, Rule 1 C.P.C. Apparently, therefore, this L. P. A. is not maintainable. It is accordingly dismissed.