P L D 1967 Lahore 439 (PLP)

KARAM ELAHI CHAUHAN, J.‑A Regular Second Appeal bearing No. 308 of 1953 had been filed in this Court by (1) Ghulam Mustafa; (2) Ghulam Qadir and (3) Ghulam Nabi (who will hereinafter be referred to as defendants) against (1) Ghulam Hussain and (2) Sohanra, sons of Pir Bakhsh, Caste Pathan, residents of Mohallah Gharibabad, outside Haram Gate, Multan City, (who will hereinafter be referred to as plaintiffs). This appeal came up for regular hearing on the 18th of January 1957, when on an objection by the plaintiffs it came to the notice of the learned Judges that Sohanra had died in August, 1954, and that his legal representatives had not been brought on the record and it was then submitted that for this reason the whole appeal had abated. The case was adjoruned to enable the defendants to file necessary applications in .that behalf. They put in two applications bearing No. C. M. No. 81‑C and. C. M. No. 82‑C of 1957, for bringing the legal representatives of Sohanra on record and also for condonation of delay in that respect. Both these applications were dismissed by a Division Bench of this Court consisting of B. Z. Kaikaus and Muhammad Yaqub Ali, JJ., by meane, of orders dated the 20th of July, 1960, and it was held that the appeal stood abated so far as Sohanra respondent was concerned; and that the subsequent effect of this aspect of the case should be determined by the Bench who was to hear the appeal later on, on merits. 2. ‑ On the 22nd of October 1960, a review application was put in by the defendants with regard to the orders passed by the Division Bench on the 20th of July 1960. This was Review Application No. 43 of 1960. It was put up for motion hearing before Muhammad Yaqub Ali and S. Anwarul Haq, JJ. who issued notice in the same. Since B. Z. Kaikaus J., had been elevated to the Supreme Court, it was ordered by a D. B., before whom the case was placed on the 5th of January 1961, that it was to be heard by one of the members of the Bench who had earlier decided it on the 20th of July 1960. In these circumstances, the review application came up for hearing before Muhammad Yaqub Ali, J. on 29‑5‑1961, when his Lordship, was pleased to set aside the earlier order, dated the 20th of July 1960, and directed that no abatement had at all taken place and that the main appeal should now be fixed for hearing before a Division Bench at an early. date. Against this order of the learned Single Judge, dated 29‑5‑1961, Ghulam Hussain, plaintiff, has filed the present Letters Patent Appeal.

3. Learned counsel for the defendants had raised a preli minary objection as to the maintainability of the Letters Patent Appeal. He submits that the order under appeal was passed by the learned Single Judge of this Court in (Second) Appellate Jurisdiction and as such under clause (10) of the Letters Patent, no appeal lies without a certificate of the Judge concerned. In the alternative he argues that if the order of Muhammad Yaqub Ali, J., is to be considered as an order of a Division Bench, whom his Lordship was representing, then from that point of view also no Letters Patent Appeal lies from a judgment of one D. B. to another D. B.

4. In Kanhaiya Kashiram Gujar v. Hiraji Mohansingh Rajput and others (29 A I R 1942 Nag. 18) a D. B., consisting of Stone, C. J. and Vivian Bose, J., wrote as follows: "We apprehend that the power to appeal from a single Judge exercising second appellate jurisdiction to a Bench is intended to be restricted to cases where the decision arrived at is final. In the case of review there is already a judgment. There is the decree of which review is sought. From that decree appeal lies but only with leave. Instead of leave being asked for, the aggrieved person applies for review, and it is urged that if that application is rejected, despite the Civil Procedure Code, appeal lies as of right. In our opinion, this is not so. Apart from Order XLVII, r. 7 such a decision is not a judgment within cl.

10. There has already been one final judgment, viz., the decree it is sought to vary. That `judgment' can be appealed from with leave. A Judge if he apprehended that a mistake or slip had been made, would correct, it and the corrected decree would be a judgment from which, with leave, an appeal could be brought. If the Judge refused the application and refused leave that would be the end of the matter. The policy of the law is to put some end to litigation and the end is reached in second appeal unless the litigant is allowed to continue."

5. Reference can also be made to a Full Bench decision of Muhammad Naim‑ul‑Lah Khan v. Ihsan‑ullah Khan (I L R 14 All. 226), the facts of which are contained in the headnote of the report as follows:‑ "This was a reference made by Edge, C. J., and Straight, J., to a Bench of four Judges. The plaintiffs‑appellants in the letters Patent Appeal out of which this reference arose had brought a suit in the Court of the Subordinate Judge of Saharanpur for the recovery of certain property detailed in schedules marked A, B, C and D attached to their plaint. Before a defence was filed or issues framed the plaintiffs applied to be allowed to amend their plaint by making certain additions to the property detailed in Schedules A and B. This applica tion was granted, and a note was made in the plaint of the increase in the amount claimed; bat the list of the property so added was inadvertently omitted to be attached to the plaint. The plaintiffs' suit was in part decreed and in part dismissed by the Subordinate Judge and the plaintiffs in consequence appealed to the High Court. In that appeal a decree was passed by consent modifying the decree of the Court of first instance. Subsequently, to the decision of that appeal the plaintiffs applied to the Court of first instance for amendment of its decree by inserting a detail of the property added on the petition for amendment of plaint, which application was granted. From the order on that application, however, an appeal was preferred to the High Court by the defendants, and this appeal was decreed on the ground that after an appeal had been preferred and decided, the court of first instance had no jurisdiction to pass any order under section 206 of the Code of Civil Procedure. The plaintiffs, therefore, applied to the High Court for amendment of its decree in the manner previously prayed for in the Court of first instance. That .application came before Tyrrell as the remaining Judge of the Bench which had passed the decree, and was granted by him. From that order the defendants appealed under section 10 of the Letters Patent, and on the appeal coming on for hearing the plaintiffs‑respondents took a preliminary objection that the appeal did not lie." It was held by the Full Bench that the order of the Single Judge passed in review, whereby he granted review application and modified and amended the judgment decree of a D. B. of which he was a Member himself and which judgment or decree had been passed in the Appellate Jurisdiction of the High Court, was not subject to a Letters Patent Appeal. It was further held that the order passed in review was in continuation of the Appellate Jurisdiction of the High Court from which no appeal was maintainable. Certain passages which are relevant in the report are reproduced below:‑ Edge, C. J. at page 232 wrote:‑ "However, to come back to the subject in hand I do not think it necessary to refer to the other decisions which have been passed with regard to the rights of appeal under section 10 of our Letters Patent and the corresponding sections of the Letters Patent of other High Courts. They have frequent ly been referred to; but I may confine myself to saying, in conclusion, that I think the order which was passed by our brother Tyrrell. when he decided to amend the decree in the case, was an order from which an appeal is excluded by Chapter XLIII of the Code of Civil Procedure. .It was an order passed by a Judge not on an appeal, but in the matter of an appeal in this Court, and in the exercise of the appellate jurisdiction of this Court." "I would answer this reference by saying that an appeal did not lie under section 10 of the Letters Patent from the order of our brother Tyrrell." Mahmood J., on pages 235 and 236 wrote as follows:‑ "To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree of order non‑appealable, such decree of order can be made the subject of consideration by the whole of this Court under the Letters Patent is to hold that whatever no appeal lies to this Court the ceremony of presenting it to this Court to a Single Judge of this Court, who would undoubtedly reject the appeal, makes it the subject of consideration by a Bench of the Court. It seems to me that it would be defeating the whole policy of the statute as to the finality of decisions." Knox, J., at page 237 expressed himself in the following words: "In the case before us the prayer addressed to this Court was that the Court might be pleased to rectify a mistake which it was alleged, had found its way into a decree passed by the Court on the' 12th January 1886. My brother Tyrrell considered that the decree as framed needed amendment; and passed accordingly his order amending the decree so as to carry out the intention of the Court which passed that decree. There is nothing on the record, so far as I can see, which shows that this order made by him was an order passed under section 206, as rendered applicable by sections 582 and 632 of the Code of Civil Procedure. It may or may not have been so. I am satisfied that, independently of these sections, this Court has power to amend its decrees. I am not free from some doubts whether section 579 was intended to be, so far as appeals are concerned, the correlative section to 206, which applies, at any rate primarily, to decrees in original suits, and was intended to be complete in itself. But from this standpoint also no appeal would lie from the order passed, as the order in any event was clearly made in the exercise of the appellate jurisdiction of the Court within the meaning of section 591 of the Code. I concur with the learned Chief Justice that the order passed by my brother Tyrrell when he decided to amend the decree was an order from which an appeal was excluded by Chapter XLIII of the Code, and I, therefore, answer the reference in the terms given by him."

6. Keeping in view the above authorities, the point to be seen is as to whether the judgment, dated the 29th of May 1961, given by the learned Single Judge was, "in the exercise of appellate jurisdiction in respect of decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court" ; if this is so, then it is obvious that no Letters Patent Appeal was competent without the certificate of the learned Single Judge concerned. In this connexion, we may refer to some case law on the subject. In Muhammad Hassan Khan v. L. Bhikhari Lai and others (A IR 1950 All. 534), the facts were that, "appeal of the defendant having been dismissed in the lower appellate Court, he filed an application for review under O. XLVII, r. 1, C. P. C. The Court granted the application and directed rehearing of the case. An appeal against that order was filed in the High Court by the plaintiff under O. XLIII, r.

1. The Single Judge who heard the appeal dismissed it and refused to grant permission to file Letters Patent Appeal. In spite of the refusal, the Letters Patent Appeal was filed by the‑plaintiff‑appellant alleging that the appeal from order filed in the High Court was not against an order passed by the lower appellate Court in the exercise of its appellate jurisdiction within the meaning of the clause but in the exercise of a `jurisdiction in review' and so the leave was wrongly asked for, it not being a condition prerequisite for filing the appeal." It was held that, "it was true that the order appealed against was not passed on `appeal,' but there was no doubt that it was passed by the lower appellate Court in the exercise of its appellate jurisdiction. The case came up before that Court and it became seized of it as a Court of appeal and the application for review was filed before it by invoking its jurisdiction as a Court of appeal to set aside its previous order and to rehear the appeal. The learned Single Judge having refused leave for appeal, the appellant had no right to file it and the appeal was,, therefore, not maintainable." Applying the above‑noted principle to the facts and the circum stances of the present case, it would appear that when the regular second appeal came in the High Court, it became seized of it as al Court of appeal and the application for review was filed before it by invoking its jurisdiction as a Court of appeal to set aside its previous order and to rehgar a part of‑the subject‑matter of appeal A which had earlier been held to have abated. The judgment of the learned Single Judge was, therefore, in exercise of (Second) Appellate Jurisdiction and a certificate for filing a Letters Patent Appeal was essential.

7. In Ram Adhar Misra v. Parshotem Misra and others (A I R 1950 All. 226) the facts were that a suit was decided by the trial Court (Munsif). An appeal against the decision of the trial Court was taken before the Judge, Small Causes, who passed an ex parte decree. An application was filed to set aside the ex parte decree which was also dismissed. Against the order refusing to set aside the ex parte decree an appeal was filed in the High Court under Order XLIII, r. 1, C. P. C. This appeal was dismissed by a Single Judge. Question arose as to whether a Letters Patent Appeal could be filed without the certificate of the learned Judge. It was held that the learned Judge of the Small Causes Court was seized of the case as a Court of Appeal and the order passed by him was in the exercise of its appellate jurisdiction in respect of a decree or order, and, as such, no Letters Patent Appeal without the certificate of the Single Judge was maintainable. It will be appreciated that though the application was filed before the Judge, Small Causes Court under O. XLI, r. 21 to set aside the ex parte decree, but the jurisdiction in which all those proceedings were being taken, was the appellate jurisdiction of the Judge Small Causes. The test, it would thus appear is not the actual matter which is decided by the Judge but the main jurisdiction, under which the main case came in the High Court wherein the ancillary matters later on arose. Once the source of the High Court jurisdiction with regard to the main case has been ascertained, rest of the proceedings though regulated by different provisions on the subject remain to be proceedings in the same jurisdiction under which the case came up in the High Court. Another example of this can be the, case of a temporary injunction in second appeal. If in second appeal, an appli cation for temporary injunction is given, but is dismissed then, since the main appeal was in respect of a decree, or order made in the exercise of appellate jurisdiction, the Letters Patent Appeal, with regard to injunction matter would not be competent without a certificate because the order in that matter has been passed in appellate jurisdiction. Reference for this can be made to Mohan Lai and another v. Amar Chand (A I R 1935 Lah. 815). This was a case in which Regular Second Appeal was dismissed in default. An application for its restoration under O. XLI, r. 19 was rejected. Question arose as to whether a Letters Patent Appeal could be filed against the order rejecting the restoration application without the certificate of the learned Single Judge concerned. It was held that the certificate was essential and a Letters Patent Appeal, without the requisite certificate was not maintainable. The actual passage in the report reads as follows: ‑ "Mr. Mehr Chand Mahajan who appears for the respondent takes a preliminary objection that the appeal cannot proceed as it has not been properly presented to this Court. He argues that the certificate required by Cl. 10 was necessary under the circumstance as the learned Judge in refusing to restore the appeal merely exercised his appellate jurisdiction in respect of the appellate order of the District Judge and no appeal is competent in such cases unless the Judge exercising this jurisdiction grants a certificate that the case is a fit one for appeal. Counsel for the appellants, however, urges that no certificate was necessary as at the time the learned Judge enter tained and refused the application for restoration of the appeal he did not exercise any jurisdiction in respect of the appeal which alone makes the certificate obligatory. There, is no authority bearing upon this point one way or the other. We have, there fore, considered this matter in the light of the language employed in clause 10 and have arrived at the conclu sion that the preliminary objection must prevail. It is only in the exercise of his appellate power that a Judge of this Court can exercise his jurisdiction under Order XLII, Civil P. C., read with Order XLI, rule 19, and whatever order he may pass, it does no doubt affect the original appeal. When the learned Judge of this Court, therefore, dismissed the appeal "for default" he confirmed the judgment and decree of the lower appellate Court and in refusing to set aside that order, he declined as it were to re‑open the case or in other words to withdraw his order confirming the decree of the lower appel late Court. The order of refusal, therefore, was made in respect of the appeal and this had been in the exercise of the appellate jurisdiction. The certificate required by clause 10 was accordingly necessary before an appeal against the order could be presented to us. This matter again came under consideration in Muhammad Shafi and others v. Din Muhammad and others (P L D 1951 Lah. 397) before Muhammad Munir, C. J., and Kayani, J. It was a case in which a Regular Second Appeal was heard ex parte by a Single Judge of this Court. An application under Order XLI, rule 21 read with Order XL 11, C. P. C., for re‑hearing the appeal was filed but was rejected. A prayer for permission to file an appeal under clause 10 of the Letters Patent was also refused. An appeal, however, was filed without a certificate and the question arose as to whether the appeal without a certificate was maintainable, Muhammad Munir, C. J., who wrote the leading judgment wrote as follows (after referring to clause 10 of the Letters Patent):‑ "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 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 XLI of the Code of Civil Procedure. 'And where this appellate jurisdiction is exercised `in respect of an 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 exer cise of appellate jurisdiction by a Court subject to the superin tendence of the said High Court' within the meaning of clause 10 of the Letters Patent." This authority goes to show that it is the main jurisdiction under which the main case in the High Court came, which is to be seen and it is not the ancillary provision under which a particular matter is agitated, claimed or determined, which determines as to whether the judgment of the Single Judge is 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 superin tendence of the High Court. To the same effect are Kalish chandra Somaddar v. Revati Mohan Roy Chowdhury (41 I C 183), Mu1ji virji v. Bangahashi Saha (9 C W N 502) and Aubhoy Churn Mohunt v. Shamont Lochun ((1869) 12 Su th. Wr. 459), which lay down that in review matters (in appellate jurisdiction) no Letters Patent Appeal is maintainable.

8. When confronted with this situation Raja Said Akbar Khan learned counsel for the plaintiff ‑appellants submitted that if not under the Letters Patent, the present was an appeal under Order XLIII, rule 1(W), C. P. C., which authorizes an appeal from an order under Order XLVII, rule 7, granting an application for review. He stated that the jurisdiction of the learned Single Judge extended merely to the grant of a review after which the proper procedure was to lay the case on the point of abatement before the D. B., (as it was otherwise a D. B. case) which should have heard the said matter afresh. The learned Single Judge him self could not set aside in review the judgment of the Division Bench dated the 20th of July 1960, and all he could do was to certify that' the permission to review was granted and that let now a D. B. hear the matter in review. He places reliance for this proposition on the wordings of Order XLVII, rule 4 read with rules 7 and 8 and cites J. N. Surty v. T. S. Cheetyar ,Firm (A I R 1927 Rang. 20), Aubhoy Churn Mohunt v. Shamont Lochun Mohunt (I L R 16 Cal. 788), Arayal purath Randupurayil Kunhimiyan and another v. Kautiqlal Cheekiladin Ahmad Kuth Haji (2 I C 204), Maksud Woodrofe Mahi v. The Secretary of State for India in Council (9 I C 532), Purander Kumar v. Ramnarain Singh (11 I C 720), Nathu Ram v. Ganga Bux (A I R 1930 All. 815), Bhairon Din Singh v. Ram Sahai ((1887) 3 All. 316) and Bhagwati Prasad and others v. Achhaibar Singh and another (A I R 1923 Oudh 93), for this proposition. There seems force in this submission of the learned Advocate. As i down in the said authorities and as is clear from the wording the relevant rules when a review application is filed, the proceedings in the case pass through the following three stages: (a) an ex parte application and notice thereon; (b) the hearing of the application after such notice; and (c) re‑hearing of the case after granting the application for review. These stages if read in the light of rule 8 show that the Court ought to make record of the fact that the review has been granted and thereafter the Court can proceed to hear the case at once or may pass such order as to re‑hearing as it thinks fit. This is clear from the rule itself. In some cases, the order granting review of the order or of re‑hearing or the final order may be contained or combined in one composite order and the mere fact that there is no separate order for each stage will not vitiate the proceedings or the final order. As for example in a' situation, where the Judge or Judges who passed the order granting the review is or are competent to re‑hear the matter himself or themselves). But in a , case of the present kind, where the order to grant a review is to be passed by a Single Judge and , the re‑hearing was to be by a D. B., (the case being a D. B. case), there re‑'hearing of the whole matter by the Single Judge will be illegal and in excess of his jurisdiction and there the failure to pass a separate order grant ing the review within the meaning of rule 4 will vitiate all subsequent proceedings. Arguing in this way, Raja Said Akbar Khan, submitted that since the order of the learned Single Judge dated the 29th of May 1961, was in violation and in excess of rude 4, he could challenge the same under rule 7 in the appeal which was maintainable under Order XLIII, rule 1(W) read with section 106 of the C. P. C. Leaving aside for the moment the scope of the appeal and keeping open the point as to what points can be raised in such an appeal, we are of the opinion that the present appeal is not maintainable under Order XLIII, rule 1(W) either. The point as to whether provision of Order XLIII could override the provisions of the Letters Patent came up for decision in Muhammad Shafi and others v. Din Muhammad and others (P L D 1951 Lah. 397), where the learned Judges held as follows: "Both Mr. Kaikaus and Mr. Akbar 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 the second appeal is dismissed the order dismissing the application must, by reason of Order XLII, be held to be an order under rule 19 or rule 21 of Order XLI of the Code of Civil Procedure, from which an appeal lies under clause (i) of rule 1 of Order XLIIL This argument is sought to be reinforced by a Full Bench decision of the Calcutta High Court in Mothura 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 judgment an appeal would be compe tent 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 (e) of rule 1 of Order XLIII." The learned Judges then continued to observe that:‑ "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 XLI within the meaning of clause (d) of rule 1 of Order XLIII of that Code. It is true that Order XLII, rule 1 of the Code provides that the Rules of Order XLI 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 XLIII. And clause (t) of rule 1 of Order XLIII can only apply in terms to an order under rule 19 or rule 21 of Order XLI, 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 inferential; 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 something 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. Letters Patent would be incom petent, an appeal from all other orders made before or after the appeal is disposed of would lie provided such order amounted to a judgment. "For the reasons we are of the view that the present appeal does not lie. The preliminary objection prevails and the appeal is dismissed with costs." The above quoted passages leave no room for doubt that the provisions of O. XLIII are not to prevail against clause 10 of the Letters Patent and that where under the said clause an appeal is not maintainable without a certificate, the necessity that certificate cannot be dispensed with by having a resort to the provisions of Order XLIII because that would tantamount to override clause 10 of the Letters Patent.

10. The same was the view of a Full Bench of the Nagpur High Court in Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori and others (A I R 1940 Nag. 39), where it was held that the right of appeal from a decree of a Single Judge to the Division Bench of the High Court is not governed by section 96 or section 100 or section 104, Civil P. C., but by clause 10 of the Letters Patent. The relevant passage in the language of Niyogi, J., runs as follows:‑‑ "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 Civil Procedure Code 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, Civil P. C., but by clause 10, Letters Patent. As pointed out in Debendra Nath v. Bibudhendra Mansingh 43 Cal. 90, Sabhapathi Chetti v. Narayasami Chetti 25 Mad. 555 and Behram Jung v. Sultan Ali Shustry (1913) 37 Bom. 572, 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 Chapter, Section 4, Civil P. C., 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 jurisdic tion or power is conferred on the High Court by. clause 10, Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a Single Judge of the High Court to the High Court." To the same effect is a decision of the Privy Council in Harish Chunder Chowdhury v. Kali Sundri Debi (I L R 9 Cal. 482), where similar obser vations were made by them with reference under section 588 which corresponds to section 104 of the present C. P. C

11. The point that we are examining can be examined from two angles. Firstly, under section 104, C. P. C., read with Order XLIII it is laid down that the orders mentioned therein would be appealable and it is further laid down that only one appeal against those orders will be maintainable and no second appeal. Question might arise that when once a right of appeal has been availed of by filing an appeal (as for example) in the High Court, then does section 104, C. P. C., bar a second appeal even if it may be available under clause 10 of the Letters Patent. The answer is that section 104, C. P. C., does not control the right of appeal given by Letters Patent and despite the provisions of hat section a Letters Patent appeal will be maintainable. Reference can be made to Dhoom Chand Jain v. Chaman Lai Gupta and another (A I R 1962 All. 543), Vaman Revji Kulkarni v. Nagesh Vishnu Jushi and others (A I R 1940 Bom. 216), Ganpati Wadgoo v. Pilaji Kethuji and others (A I R 1956 Nag. 211), Ramprasad Ramdin v. Dagdulal Nandlal and another (A I R 1956 Nag. 215), Udhy Chand Panna Lai v. Khetsidas Tilokchand (A I R 1924 Cal. 1025), Ruldu Singh etc. v. Sanwal Singh (I L R 1922 Lab. 188), Mathura Sundari Dassi v. Haran Chandra Shaha and others (A I R 1916 Cal. 361) and Mst. Sahitri Thakurain v. Savi and another (A I R 1921 P C 80). Similarly conversely, even though an order passed by a Single Judge of the High Court may be appeal able under section 104, C. P. C., but if under clause 10 of the Letters Patent, its appeal is barred, then on the same reason ing the provisions of the Letters Patent must prevail and the 'E appeal shall be held as not maintainable. The appeal in such circumstances will be maintainable only when authorised by the Letters Patent and on such terms and conditions which are contained therein. Reference can be made to Vishnu Pratap and others v. Sm. Revati Devi and others (A I R 1953 All. 647), Vol. XL, C. N. 320 where it was held that though the order was appealable under section 104, C. P. C., but as it did not amount to a judgment within the meaning of the Letters Patent, no Letters Patent appeal lay against it. Similarly, in Mahbub Alam v. Mumtaz Ahmad (P L D 1960 Lab. 601) Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hira Nand (A I R 1948 Lah. (4) and Muzaffar‑ud‑Din v. Mst. Allah Wasayee and others (P L D 1953 Lah. 284), it, was held that Letters Patent was not controlled by section 39 of the Arbitration Act and despite no provision of second appeal being there in that Act, if Letters Patent granted a right of appeal, it will be avail able. All these authorities, therefore, prove that general law does not control the Letters Patent.

12. Respectfully following the above law we hold that the order of the learned Single Judge dated the 29th of May 1961, was passed by him in the exercise of appellate jurisdiction in respect of the decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and no appeal against it lay without the certificate of the F, Judge concerned (which, however, has not been obtained in this case). We also hold that this appeal is not maintainable without the aforesaid certificate under Order XLIII, rule 1(W) of the C. P. C., either, because the said rule cannot override the provisions of the Letters Patent and does not control or regulate Letters Patent Appeals. We accordingly dismissed on the present appeal leaving the parties to bear their own costs. K. M. A. Appeal dismissed.