Niyogi, J.:— In First Appeal No. 104 of 1936, Bose, J. passed an order appointing a receiver pending the appeal. The party aggrieved by that order preferred an appeal under Cl. 10, Letters Patent of this Court. The appeal came on for hearing before the Division Bench where the respondents raised an objection to the appeal on the ground that it was filed without any certificate from the Judge who passed the order declaring that it was a fit case for appeal. That raised a question of construction of the terms of Cl. 10, Letters Patent, and that question has been referred to this Bench for consideration. The respondents' contention is that any appeal, including first or second, preferred under Cl. 10, Letters Patent, is untenable without a certificate by a single Judge whose judgment is appealed from, that the case is a fit one for appeal. In our opinion the condition as to the certificate is applicable only to those judgments which are passed by a single Judge in exercise of his appellate powers in second appeal and to no other appeals.

2. Clause 10, Letters Patent defines the appellate jurisdiction of the High Court vis-a-vis the judgment passed by a single Judge of that Court. It should be observed that the Code of Civil Procedure does not make any provision in this behalf. The right of appeal from a decree of a single Judge to the High Court is not governed by Section 96 or Section 100 or Section 104 of the CPC, but by Clause 10, Letters Patent. As pointed out in 43 Cal 90,1 25 Mad 5552 and 37 Bom 572,3 the Code makes no provision for an appeal within the High Court, that is to say, from a single Judge of the High Court. This right of appeal depends on the special provision made in the Charter. Section 4 of the CPC, provides that the Code does not affect any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Since the special jurisdiction or power is conferred on the High Court by Cl. 10, Letters Patent the provisions in the Code of Civil Procedure regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court. The meaning of Cl. 10 will be clear when the contents in that Clause are marshalled in the form as under:

Part I. Part II. We do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur from the judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act. 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 not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction.

Part III.—And that notwithstanding anything hereinbefore 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 any Division Court made 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.

3. The question is whether the qualifying Clause detached as Part III above should be read in relation to Part I or Part II. It cannot relate to Part I for the obvious reason that it predicates nothing about the subject-matter of Part I, but on the contrary expressly mentions a judgment of one Judge of the said High Court, etc., made in the exercise of appellate jurisdiction by the Court subject to the superintendence of the said High Court which words occur in the part of the text enclosed within the brackets. The qualifying clause therefore must refer to Part II only and not to Part I. The judgments described in Part II are excepted from the purview of Part I and consequently they become non-appealable. Part III contains a counter-exception in respect of a judgment passed by a single Judge in second appeal included in Part II and makes it appealable subject to the condition that the Judge who passed the judgment declares that the case is a fit one for appeal. It is thus clear that the class of judgments falling in Part I are unconditionally appealable, those mentioned in Part II except judgments passed in second appeal are absolutely non-appealable and the judgments indicated in Part III, that is, those passed in second appeals are made appealable subject to the condition that they are-declared fit ones for appeal. It therefore follows that leave to file an appeal under the Letters Patent is necessary only for an appeal from a judgment passed by a single Judge in the exercise of his appellate powers in second appeal but not for those which are passed by him in the exercise of his original or first appellate jurisdiction.

4. The history of Cl. 10, Letters Patent also a confirms this conclusion. It corresponds to Cl. 15, Letters Patent of Calcutta, Bombay and Madras, Cl. 10, Letters Patent of Allahabad, Lahore and Patna and Cl. 13. Letters Patent of Rangoon. These Clauses, were amended in 1928. Before the Amendment there was an unqualified right of appeal from any judgment of a single Judge whether it was passed in exercise of the original or first or second appellate jurisdiction. The effect of the amendment made in 1928 is to exclude the right of appeal from a judgment passed by a single Judge sitting in second appeal unless the Judge who passed the judgment grants a certificate that the case is a fit one for appeal. In, 47 Mad 316,4 50 Mad 380,5 1 Lah 348,6 3 Lah 420,7 10 Lah 1328 and 10 Rang 1899 which were cases decided before the amendment of 1928, no question was ever raised as to the necessity of a certificate. Since the amendment of 1928, however, this question arose in various High Courts in 56 Cal 507,10 56 Cal 512,11 52 Bom 753,12 31 Bom LR 473,13 54 Bom 33114 and (1937) All 386.15 In 56 Cal 507 the question came up before a Bench of five Judges including Rankin, C.J The question was whether under the Letters Patent of 1928 the grant of a certificate was necessary in the case of two Judges composing a Division Bench differing in opinion. In the course of the discussion Rankin, C.J observes at p. 510 that as regards the judgment of a single Judge no appeal shall lie from a judgment passed in the exercise of jurisdiction to hear appeals from appellate decrees, but that the rule is subject to an exception, viz., that an appeal shall lie in such a case where the Judge who passed the judgment declares that the case is a fit one for appeal. In 56 Cal 512 it is pointed out that the effect of the amendment of the Letters Patent which came into effect in 1928 is that there is no right of appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case is a fit one for appeal. In 52 Bom 753, 31 Bom LR 473 and 54 Bom 331 the same view is expressed. In (1937) All 3861 an appeal was filed from an order of a single Judge of the High Court modifying an order of injunction and an objection was taken that the appeal was not tenable without a certificate of the Judge who passed the order under Cl. 10, Letters Patent. That contention was overruled on the ground that under Cl. 10 an appeal lies from the judgment of the single Judge of the High Court in every case in which the judgment is not passed in the exercise of appellate jurisdiction in respect of an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, that is, not being a second appeal or revision or exercise of power of superintendence.

5. From the authorities reviewed above, it is clear that the necessity for a certificate indicated in Cl. 10, Letters Patent, arises only in respect of appeals preferred from judgments of a single Judge in the exercise of his second appellate jurisdiction and in no other case. It is but proper that there should be such a restriction imposed on appeals from decrees or orders passed in second appeal in view of the policy of the law which puts an end to litigation after the stage of second appeals. Cl. 10, Letters Patent, provides for third appeals in exceptional cases and leaves it to the discretion of the single Judge from whose decision a third appeal is intended to be preferred, to decide whether or not a particular case is of an exceptional nature.

6. In the case of judgments passed by a single Judge exercising his original or first appellate jurisdiction the party has unqualified right of appeal to the High Court. It is pertinent to observe that Section III of the CPC precludes appeal to His Majesty in Council from the decree or order of one Judge of a High Court. Consequently, the only remedy left to the aggrieved party is to appeal to the High Court; since in first appeal the decree or order is liable to be-attacked both on points of fact and law, it is inconceivable that there should be any intention to fetter the party's right of filing a first appeal. My opinion is that the condition of certificate that a case is fit one for appeal applies only to those decrees or orders which are passed by a single Judge in the exercise of his second appellate-jurisdiction and to no other cases.

Pollock, J.:— The question referred to us-for decision is whether an appeal will lie to this High Court, as of right and without leave to appeal, from the decision of a single Judge of this Court passed in first appeal. This depends upon the construction of Cl. 10, Letters Patent. The first part of that clause provides that an appeal shall lie to the High Court against all judgments of a single-Judge of this Court except judgments passed in second appeals or orders passed in the exercise of revisional jurisdiction or under Section 107 of the Government of India Act or in the exercise of criminal jurisdiction. The next part goes on to provide that an appeal shall lie from the judgment of a single Judge passed in second appeal. Then come the words, “where the Judge who passed the judgment declares that the case is a fit one for appeal.” The question is whether these words qualify both the preceding parts or only the second part. If the words qualify the second part only, the Clause may be roughly paraphrased as follows: “An appeal shall lie from the judgment of a single Judge, except from a judgment passed in second appeal or in revision etc. Provided that an appeal shall lie from a judgment passed in second appeal, where the Judge declares the case to be a fit one for appeal.”

7. On the other hand, if the words qualify both the preceding parts the Clause may be roughly paraphrased as follows: “An appeal shall lie from the judgment of a single Judge, except from a judgment passed in second appeal or in revision etc., and notwithstanding this an appeal shall lie from the judgment of a single Judge passed in second appeal: Provided that no appeal shall lie except where the Judge declares the case to be a fit one for appeal.” I find it quite impossible to accept the second interpretation, for, this would mean that the framers of this Clause included second appellate judgments in the first part of the clause merely in order to exclude them in the second part. If that had been their intention, it would have been very much simpler to frame the Clause on the following lines: “An appeal shall lie from the judgment of a single Judge, except from a judgment passed in revision, etc.: Provided that no appeal shall lie except where the Judge declares the case to be a fit one for appeal.” A construction that involves reading two successive sentences as flatly contradicting each other must be avoided if possible, and I have no doubt that the correct interpretation is to read the provision about leave to appeal as applying only to judgments passed in second appeals. That this was the intention of the framers is clear from the history of this Clause. Originally, in the older High Courts, there was an unrestricted right of appeal against judgments passed by a single Judge in second appeal. The Civil Justice Committee in their report of 1925 strongly condemned the system whereby the High Court was obliged to entertain the same appeal twice and recommended that the Letters Patent should be amended on the lines of the Letters Patent of the High Court of Rangoon, which had then been recently established, so as to take away the right of a third appeal except in cases where the Judge certified the case to be a fit one for appeal. There was no suggestion that the right to appeal against the judgment of a single Judge passed in first appeal or in the exercise of original jurisdiction should be taken away, and, so far as I am aware, the Clause, as now amended, has never been construed by any other Court so as to take away such a right. The construction that I place upon this clause is supported by the decisions in 54 Bom 33 and (1937) All 386. It was apparently assumed in 9 Rang 31.16 The question whether the order of Bose, J. in this particular case, appointing a receiver, is a judgment, within the meaning of Cl. 10, has not, I understand, been referred to us for decision. I agree that the reference should be answered as proposed by Niyogi, J.

Gruer, J.:— I have always held the view that in Cl. 10, Letters Patent the phrase “where the Judge who passed the judgment declares that the case is a fit one for appeal” applies only to the cases mentioned in the second part of that Clause. This seems to me the only logical way of construing the whole, and when the history of the Clause is traced it is the only possible interpretation. I am fortified in my opinion by the arguments we have just heard, which have been lucidly set forth in the opinions of Niyogi and Pollock, JJ. I concur with them in the answer they give to this reference.

D.S/R.K

8. Answer accordingly.