P (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal under clause 10 of the Letters Patent from an order of Muhammad Sharif J., by which he dismissed the appellant's application under Order 41 rule 21 read with Order 42 of the Civil Procedure Code for the re hearing of a second appeal. The facts are simple and are as follows. The appellant was a respondent to R. S. A. 69 of 1948. That appeal was heard by Muhammad Sharif, J.,' ex‑parte the respondent and accepted, the decree of the lower Appellate Court having been set aside and that of the trial Court restored. The appellant then made an applica tion under Order 41 rule 21 of the Code of Civil Procedure read with order 42 for the re‑hearing of the appeal, but the application was rejected by the learned judge. A prayer for permission to file an appeal under clause 10 of the Letters Patent was also refused. The appellant has now without a certificate preferred this appeal which is directed against the order dismissing the application under Order 41 rule 21 of the Civil Procedure Code. The respondent objects to the competency of the appeal on the ground that it does not lie in the absence of a certificate. The point is concluded by Mohan Lal v. Amar Chand, A. I. R. 1935 Lab. 815, where Addisen and Din Muhammad, JJ. held in similar circumstances that no appeal is competent under clause 11 of the Letters Patent without a certificate from the Single judge) dismissing the application. Clause 10, under which the appeal ha Is been preferred, is in the following terms :‑

"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore 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 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 power of superintendence under the provisions of section 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 section 108 of the Government of India Act, and that notwith standing 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, pursuant to section 108 , of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty‑nine 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 ; but that the right of appeal from other judgment, of Judges of the said High Court or of such Division Court shall be to us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided". It is obvious on a plain reading of this provision that no appeal lies as of right from 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 unless the judge who passed the judgment declares the case to be a fit one for appeal. The order on an application to re‑admit or re‑hear an appeal can only be passed in exercise of appellate jurisdiction which is expressly conferred by rules 19 and 21 of Order 41 of the Code of Civil Procedure. And where this appellate jurisdiction is exercised in respect of all appellate, as distinguished from an original, decree or order, it must be held that that jurisdiction is exercised "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" within the meaning of clause 10 of the Letters Patent. Both Mr. Kaikaus and Mr. Akber Ali, who have appeared before us in support of the two connected appeals, have argued that a right of appeal in these circumstances is given by the Code of Civil Procedure independently of the Letters Patent. The argument is that when an application to re‑admit or re‑hear a second appeal is dismissed, the order dismissing the application must, by reason of Order '42, be held to be an order under rule 19 or rule 21 of Order 41 of the Code of Civil Procedure, from which an appeal lies under clause (t) of rule 1 of Order

43. This argument is sought to be reinforced by a Full Bench decision of the Calcutta High Court in Mathura Sundari Dasi v. Haran Chandra Saha, I. L. R. 43 Cal.

857. In that case the question was whether an appeal lies to the High Court on its appellate side from an order passed by a Single judge sitting on the original side, rejecting an application to set aside the dismissal of a suit for default. It was conceded in that case that if the order rejecting the application was a "judg ment", an appeal would be competent under clause 15 of the Letters Patent of that Court. Two of the Judges held that such an order was a judgment and that for that reason an appeal under clause 15 of the Letters Patent was competent. The appeal was also held to lie by two of the Judges on the further ground that the Code of Civil Procedure gave a right of appeal in such circumstances. The Calcutta case is, therefore, obviously distinguishable not only because an appeal lay in that case under clause 15 of the Letters Patent but also because the Code gives a right of appeal in these circumstances by clause (C ) of rule 1 of Order

43. We cannot hold that an order to re‑admit or re‑hear a second appeal is an order under rule 19 or rule 21 of Order 41 within the meaning of clause (d) of rule 1 of Order 43 of that Code. It is true that Order 42 rule 1 of the Code provides that the Rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees, but that Order does not have the effect of creating a right of appeal where none exists under Order

43. And clause (t) of rule 1 of Order 43 can only apply in terms to an order under rule 19 or rule 21 of Order 41, that is to say, to 'an order passed by the Appellate Court hearing an appeal from an original decree. But even if such orders, when passed by a Court of second appeal, be held to be covered by clause (t), there would be a conflict between that clause and clause 10 of the Letters Patent, and the latter being more specific and later in date would prevail against a result inferentially deduced from the provisions of the Code. It may be that the Letters Patent are subject to legislative powers of certain other authorities, but that does not mean that anything specifically provided therein can be rendered nugatory because there was some thing to the contrary in an Act enacted earlier, which was in force on the day that the Letters Patent came into operation. If the contention of the appellant is given effect to, then several orders, perhaps every order, with the exception of the final order in respect of the appellate, decree or order would become appealable without a certificate of the judge making that order, and this would clearly be an anomalous result because whereas from the final order an appeal under the Letters Patent would be incompetent, an appeal from all other orders made before or after the appeal is disposed of would be provided such order amounted to a judgment. For these reasons we are of the view that the present appeal does not lie: The preliminary objection prevails and the appeal is dismissed with costs. A. H. Appeal dismissed