Holding

A letters‑patent appeal is maintainable against the judgment of a Single Judge passed under Section 299 of the Indian Succession Act, as the order is a judgment within the meaning of Section 2(9) CPC and is not barred by Section 104 CPC.

Summary

The appellant, son of the testator, applied for probate of his father's will. The Additional District Judge rejected the application, but the Gauhati High Court, on appeal under Section 299 of the Indian Succession Act, 1925, granted letters of administration. The respondents filed a letters‑patent appeal against the High Court’s judgment, which the High Court allowed, overruling the appellant’s objection that the appeal was barred by Section 104 of the Code of Civil Procedure. The Supreme Court examined whether Clause 15 of the Letters Patent permits such an appeal and whether Section 104 CPC precludes it. It held that an order under Section 299 is a judgment within the meaning of Section 2(9) CPC, that the right of appeal is created by the special statute and therefore not barred by Section 104, and that Clause 15 of the Letters Patent applies. Consequently, the letters‑patent appeal was maintainable and the Supreme Court dismissed the appeal.

Issues considered

Whether Clause 15 of the Letters Patent confers a right of appeal against a judgment passed by a Single Judge of the High Court under Section 299 of the Indian Succession Act, 1925.
Whether Section 104 of the Code of Civil Procedure, 1908 bars a letters‑patent appeal in such circumstances.
Whether an order passed under Section 299 of the Indian Succession Act constitutes a 'judgment' within the meaning of Section 2(9) of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. 104, s. 2(2), s. 2(9)
Indian Succession Act, 1925s. 268, s. 283, s. 284, s. 295, s. 299
Land Acquisition Act, 1894s. 54

Subjects

Letters Patent appealIndian Succession ActSection 299Section 104 CPCProbateJudgmentAppellate jurisdictionHigh CourtSupreme Court

Judgment

A SUBAL PAUL
v. '(
MALINA PAUL AND ANR.

FEBRUARY 13, 2003

B [V.N. KHARE, CJ., S.8. SINHA AND DR. A.R. LAKSHMANAN, JJ.]

+
Letters Patent (Calcutta High Court):

Clause I 5-0rder passed by Single Judge of High Court in appeal ul
c s.299 of Indian Succession Act-Letters Patent Appeal filed before .Division
Bench-Objection as regards maintainability ofletters patent appeal overruled
by High Court-Held, order passed by Single Judge in appeal u!s.299 was
appealable to Letters Patent Bench and the objection with regard to
maintainability of appeal was rightZv overruled by High Court-Clause I 5 of
D the Letters Patent confers a right of appeal on a litigant against any judgment
passed under any Act unless the same is expressly excluded-Clause I 5 may
be subject to an Act but when it is not so subject to the special provision, the
power and jurisdiction of the High Court under Clause I 5 to entertain any
appeal jiw11 a judgment would be effective-Clause I 5 of the Letters Patent
permits an appeal against the order passed by a Single Judge of the High
E Court in the second forum-Indian Succession Act, 1925-s.299.

Sharda Devi v. State of Bihar, (2002) 3 SCC 705; Shah Babula/ Khimji
v. Javaben D. Kania and_Anr., (19811 4 SCC 8; National Sewing Thread Co.
Ltd., Chidambaram v. James Chadwick and Bros. Ltd., AIR (1953) SC 357;
Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals
F
Pvt. ltd. and Ors., [1991) 2 SCC 637 and Prataprai N. Kothari v. John
Braganza, [1999) 4 SCC 403 relied on.

Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji
Solanki and Ors., AIR (1988) SC 915 - (198812SCR1043; Mis. Tanus1ee
G Art Printers and Anr. v. Rabindra Nath Pal, (2000) 2 CHN 213 and (2000)
2 CHN 843; Union of India and Ors. v. Aradhana Trading Co. and Ors.,
[2002) 4 SCC 447; Chandra Kanta Sinha v. Oriental Insurance Co.Ltd. and
Ors., [2001 J 6 SCC 158 and .Municipal Corporation of Brihanmumbai and +
Anr. v. State Bank of India, [1999) 1 SCC 123 referred to.

H 1092
SUBAL PAUL v. MALINA PAUL 1093
Ba/want v. Mainabai; AIR (1991) Madhya Pradesh 11; Jyotirindra A
Nath Chowdhury v. Pratima Rani Debi; I LR (1967) 1 Cal. 278, distinguished.

New Kenihrorth Hotel (P) ltd. v. Orissa State Finance Corporation and
Ors., 119971 3 SCC 462 and Balai Lall Bane1jee and Ors. v. Debaki Kumar
Ganguly and Ors., AIR 1984 Cal.16 held inapplicable.
B
Indian Succession Ac/, 1925

S.299-0rder passed under-Nature of-Will-Son of testator applying
for probate-Additional District Judge rejecting the prayer-Appeal uls.299
before Single Judge of High Court allowed-letters Paten/ appeal held
maintainable by Division Bench of High Court-Held, a final order passed C
under s.299 adjudicating upon the rights and obligations which are binding
between the parties thereto and are enforceable may not be stricto sensu a
decree within the meaning ofs.2(2) CPC, but is a judgment within the meaning
of s.2(9) thereof-While determining the question as regards clause 15 of
letters )'Jatent, the Court is required to see as to whether or not the order D
sought to be appealed against is a judgment within the meaning thereof-
Once it is found that irrespective of the nature of the order, meaning thereby
whether interlocutory or final, a judgment has been rendered, clause 15 of
letters Patent would be attracted-S.299 expressly provides for an appeal to
High Court-The right of appeal, therefore, is not conferred uls.104 Cl'C-
The words "save as expressly provided by any other Act" were inserted in the E
said provision in 1908 having regard lo difference of opinion rendered in the
judgments ofvarious High Courts as regards the applicability of letters palent,
and to give effect to the Calcutta, Madras and Bombay High Courts' decisions-
S. l 04 CPC does not contemplate orders or decree passed under a special
statute-The words "in accordance with the provisions of the Code of Civil F
Procedl!re, 1908" occurring in s.299 of Succession Act do not refer to any
substantive rights of the parties but merely procedural part-A righl of appeal
of a party in a contentious proceedings is, therefore, to be found in the
provisions of s.299 of the Act itself and not in s.104 of the Code of Civil
Procedure-Code of Civil Procedure, 1908-S.104-letters Patent (Calcutta
High Court)-Clause 15. G
Miss Eva Mozmtstephens v. Mr. Hunter Garnett Orme, ILR (1913) 35
All.448; G.S. Nayyar v. Smt. Kaushalya Rani and Ors., ILR (1974) 2 Delhi
5; Hurrish Chunder v. Kaisunder; (1883) 9 CaL482:10 I.A.4 and Bannu Bibi
v. Mehdi Husain, (1889) 11 All 375, referred to.
H
1094 SUPREME COURT REPORTS [2003] I S.C.R.

A Code of Civil Procedure. 1908"

S. I 04-The section mere~r recognises appeals provided under special
statute-It does not create a right of appeal as such-It does not, therefore,
bar any jill'ther appeal also, if the same is provided for under any other Act
for the time being in force-Indian Succession Act, 1925-s.299.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7806 of2001.

From the Judgment and Order dated 30.8.2000 of the Gauhati High at
Assam in L.P.A. No. l of 2000.

C . Sanjay Parikh, Ms. Vandana Sudan and A.K. Misra for the Appellant.

Ms. Madhu Moolchandani for the Respondents.

The following Order of the Court was delivered :

D The short question that arises for consideration in this appeal is as to /
whether a letters patent appeal would lie against the judgment of a learned
Single Judge of the High Court filed under Section 299 of the Indian
Succession Act, 1925 (hereinafter referred to as 'the Act').

When this matter came up before a Bench of two Judges, the Bench
E was of the view that the aforesaid question requires to be considered by a
Bench of three Judges. It is in this way the matter has come up before us.

The facts giving rise to this appeal areI that on 8.12.1986 one Srish
Chandra Paul executed his last Will. On I 7.3.1988 he died. The appellant
herein who is a son of Srish Chandra Paul applied for probate before the
F Additional District Judge, Agartala. The learned Additional District Judge
rejected the prayer for issue of probate. Aggrieved, the appellant preferred an
appeal under Section 299 of the Act before the Gauhati High Court. A learned
Single Judge of the High Court allowed the appeal and granted letters of
administration with a copy of the Will annexed thereto. Aggrieved, the
G respondents preferred a letters patent appeal before a Bench of the High
Court. Before the said Bench, the· appellant herein raised a preliminary
objection that no such appeal is maintainable being barred by Section l 04 of
the Code of Civil Procedure, 1908. The Bench overruled the objection and
directed for hearing of the appeal. It is at this stage the appellant herein filed
the present appeal by special leave and by virtue of the interim order passed
H by this Court the hearing in the letters patent appeal was stayed.
SUBAL PAUL v. MALINA PAUL 1095

Mr. Sanjay Parikh. learned counsel appearing for the appellant reiterated A
the arguments raised before the High Court Mr. Parikh submitted that an
appeal to the .High Cou11 in terms of Section 299 of the Act would be
governed by Section 104 of the Code of Civil Procedure. According to the
learned counsel. as an order passed by the District Judge in a contentious
proceeding is not a decree within the meaning of Section 2(2) of the Code B
of Civil procedure. the appeal would not lie from a decree as provided for
under Section 96 of the Code of Civil Procedure. No formal decree is drawn
up for such purpose nor the same can be annexed to the memorandum of
appeal. In that view of the matter, sub-section (2) of Section 104 of the Code
of Civil Procedure is a bar as regards maintainability of appeal under clause
15 of the letters patent of the Calcutta High Court. The learned counsel in C
support of the said contention strongly relied upon Ba/want v. Mainabai,
AIR (1991) Madhya Pradesh 11; Jyotirindra Nath Chowdhury v. Pratima
Rani Debi, ILR (I 967) I Cal. 278 and Balai Lall Banerjee and Ors. v.
Debaki Kumar Ganguly and Ors .. AIR (1984) Cal. 16. He would further
submit that in terms of clause 15 of the Letters Patent, an appeal would be
maintainable when an original order is passed by a Single Judge of the High D
Court and or when an appellate order is passed in an appeal arising from a
decree and not from an order.

According to the learned counsel, by virtue of Section !04 of the Code
of Civil Procedure, the judgment under challenge in the High Court not being E
a judgment and decree passed by the learned Single Judge, no letters patent
appeal would lie there against. In support of the said contention, strong
reliance has been placed on Shah Babula Khimji v. Javaben D. Kania and
Anr., (1981] 4 SCC 8 and New Kenilworth Hotel (P) Ltd v. Orissa State
Finance Corporation and Ors., [1997] 3 SCC 462.
F
The learned counsel appearing on behalf of the respondents, on the
other hand, would submit that the question is squarely covered by a recent
judgment of this Court in Sharda Devi v. State of Bihar, [2002] 3 SCC 705.

It is not disputed that the Indian Succession Act, 1925 is a special Act
and Section 299 thereof provides for an appeal against the order passed by G
the District Judge either refusing or issuing probate, to the High Court in
accordance with the provisions of the Code of Civil Procedure, 1908.

Section 268 of the Act Provides that the proceedings for grant of probate
and letters of administration shall, save as therein provided, be regulated, so
far as the circumstances of the case permit, by the Code of Civil Procedure, H
1096 SUPREME COURT REPORTS f2003] I S.C.R.

A 1908. The proceedings for grant of probate is initiated by filing an application
under Section 276 of the Act. The details "·hich are required to be stated
therein have been specified in the said provision. Section 278 of the Act
similarly provides for the manner in ''hich an application for grant of letters
of administration is to be filed. Sub-section (I) (c) of Section 283 empowers
B the District Judge to issue citations calling upon all persons claiming to have
any interest in the estate of the deceased to come and see the proceeding after
issuance thereof. Section 284 of the Act provides for lodging of caveats.
Once a caveat is lodged, the proceeding becomes contentious. Section 295 of
the Act Provides for procedure in contentious matters whereas Section 299
provides for an appeal from the orders passed by the District Judge in the
C proceedings.

Sections 295 and 296 read thus:

"295. Procedure in contentious cases.-ln any case before the District
Judge in which there is contention, the proceeding shall take, as
D nearly as may be the form of a regular suit, according to the povisions
of the Code of the Civil Procedure, 1908, in which the petitioner for
probate or letters of administration, as the case may be, shall be the
plaintiff, and the person who has appeared to oppose the grant shall
be the defendant.''

E "299.- Appeals from orders of District Judge.-Every order made
by a District Judge by virtue of the powers hereby conferred upon
him shall be subject to appeal to the High Court in accordance with
the provisions of the Code of Civil Procedure, 1908, applicable to
appeals.''
F
The provisions referred to hereinbefore clearly go to show that although
the contentious proceedings would not be treated as regular suit or upon
determinations of the issues raised therein a decree is riot to follow the
judgment but procedural provisions of the Code of Civil Procedure would be
applicable. The words "in accordance with the provisions of the Code of
G Civil Procedure, 1908" occurring in Section 299 of the Act, therefore, do not
refer to any substantive rights of the parties but merely procedural part thereof.

A right of appeal of a party in a contentious proceeding is, therefore,
to be found in the provisions of Section 299 of the Act itself and not in
H Section 104 of the Code of Civil Procedure.
SUBAL PAUL r. MALINA PAUL 1097

Section 299 of the Act states that all orders passed by the District Judge A
are appealable. Although ex facie, all orders are appealable ones. however
t.he decisions rendered in various jurisdictions point out the inherent lin1itations
CJJlltained therein.

It is interesting to note that the Allahabad High Court in Miss Evu
Mo11ntstephe11s v. Mr. Hunter Garnett Orme, ILR ( 1913) 35 All. 448 held B
that an order passed in a contentious proceeding for grant of probate and
letters of administration with a copy of Will would be a decree. Some other
High Courts. however, have taken a contrary view. See G.S. NGJ''ar v. Smt.
Kausha/ya Rani ani Ors., !LR (1974) 2 Delhi 5.

It is further interesting to note that procedures have been adopted in
c
some High Courts including the Allahabad. Bombay, Madras, Rajasthan and
Patna High Courts to prepare a formal decree but such a procedure has not
\ been adopted in some other. The judgments of different High Courts are also
.. at variance as regards the amount of court fee payable in an appeal filed
under Section 299 of the Act. D
It is in the aforementioned context, the question is as to whether the
provision of Section I 04 of the Code of Civil Procedure is attracted in an
appellate proceeding under the Indian Succession Act is required to be
considered.
E
Section I 04 of the Code of Civil Procedure provides that an appeal
shall lie from the orders specified therein and save as otherwise expressly
provided in the body of the Code or by any law for the time being in force,
from no other orders:

"(ff) an order under Section 35A: F

(tfa) an order under Section 91 or Section 92 refusing leave to institute
a suit of the nature referred to in Section 91 or Section 92, as the case
may be;

- (g) an order under Section 95:

(h) an order under any of the provisions of this Code imposing a fine
G

or directing the arrest or detention in the civil prison of any person
except where such arrest or detention is in execution of a decree:

(i) any order made under rules from which an appeal is expressly H
1098 SUPREME COURT REPORTS f2003] I S.C.R.

A allowed by rules:

Provided that no appeal shall Iie against any order specified in
clause (ft) save on the ground that no order or an order for the
payment of less amount. ought to have been made."

B It is not disputed that Section 299 of the Act expressly provides for an
appeal to the High Court. The right of appeal, therefore, is not conferred '•
under Section 104 of the Code of Civil Procedure. The words "save as
expressly provided by any other Act'' were inse1ted in the said provisions in
1908 having regard to difference of opinions rendered in the judgments of
various High Cowts as regards the applicability of letters patent. The High
C Courts of Calcutta, Madras and Bombay following the decisions of the Privy
Council iu ,, urrish Chunder v. Kaiszmder, (I 883) 9 Cal. 482: 10 I.A. 4 held
that Section 588 of the Code of Civil Procedure, as it then stood, did not take
away the jurisdiction of clause 15 of the Letters Patent whereas the Allahabad
High Court in Bannu Bibi v. Mehdi Husain, (1889) 11 All. 375 held to the
D contrary. The said words were, therefore, added in the 1908 Act to give
effect to the Calcutta, Madras and Bombay High Courts' decisions.

Had the intention of the Legislature been that an appeal under Section
299 would be governed by the provisions of the Code of Civil Procedure, the
Legislature could have used the language as has been done in Section 28 of -t -
E the Hindu Marriages Act providing that all decrees and orders passed under
the Act "may be appealed from under any law for the time being in force."

It is one thing to say that as no decree is prepared, the procedural
provisions for preferring an appeal as required under Order 41 Rule I of the
Code of Civil procedure shall not be applicable and, thus, a copy of the
F decree is not required to be annexed with the memorandum of appeal but it
is another thing to say that a right of appeal is provided under Section I 04
of the Code of Civil Procedure itself. Section I 04 of the Code of Civil
Procedure specifies matters which would appealable and no other. Under the

-
Code of Civil Procedure ltp'pcats from ·orders are provided for in Section 104
G and Order 43 Rule 1 thereof. The said provisions contain a full list of
appealable orders. It does not contemplate orders or decree passed under a
special statute.

By reason of Section I 04 of the Code of Civil Procedure the bar of
appeal under a special statute is saved. A plain reading of Section I 04 of the
H Code of Civil Procedure would show that an appeal shall lie from an appealable
SU BAL PAUL v. MALINA PAUL 1099

order and no other order save as otherwise expressly provided in the body of A
this Code of or by any law for the time being in force. Section I 04 of the
Code 1nerely recognises appeals provided under special statute. It does not
create a right of appeal as such. It does not. therefore bar any further appeal
also, if the same is provided for under any other Act. for the ti1ne being in
force. Whenever the statute provides such a bar. it is so expressly stated as B
would appear from Section IOOA of the Code of Civil Procedure.

If a right of appeal is provided for under the Act. the limitation thereof
must also be provided therein. A right of appeal which is provided under the
Letters Patent cannot be said to be restricted. Limitation of a right of appeal,
in absence of any provision in a statute cannot be readily inferred. It is now C
well-settled that the appellate jurisdiction of a superior court is not taken as
excluded simply because subordinate court exercises its special jurisdiction.
In G.P. Singh's 'Principles of Statutory Interpretation', it is stated:

"The appellate and revisional jurisdiction of superior courts is not
' taken as excluded simply because the subordinate court exercises a D
special jurisdiction. The reason is that when a special Act on matters
governed by that Act confers a jurisdiction to an established court, as
distinguished from a persona designate, \vithout any words of
limitation, then, the ordinary incident of procedure of that court
including any general right of appeal or revision against its decision
I is attracted ... '' E

But an exception to the aforementioned rule is on matters where the
special Act sets out a self-contained Code, the applicability of the general law
procedure would be impliedly excluded. See Upadhyaya Hargovind
Devshanker v. Dhirenderasinh Virbhadrasinnhji Solanki and Ors., AIR (1988) F
SC 915: [1988) 2 SCR 1043.

It is in the aforementioned backdrop the decisions relied upon by
Mr. Parikh need be considered .

. In Ba/want v. Mainabai's case (supra), learned Single Judge of the
Madhya Pradesh High Court was considering the question as to whether a G
miscellaneous appeal would be maintainable. It did not decide the question
that an appeal shall lie only under Section I 04 of the Code of Civil Procedure
but merely held that a miscellaneous appeal would be maintainable having
regard to the fact that an appeal under Section 299 lies against an order
passed by the District Judge. H
1100 SUPREME CO{)RT REPORTS f2003] .1 S.C.R.

A In Jyotrindra Nath Chowdhry1 's case (supra), a question arose as to
whether an order appointing the Administrator would be appealable. Sen. J..
as he then was. observed:

'"The Indian Succession Act is a law for the time being in force.
Section 299 of this Act says that every order made by the District
B Judge by virtue of the powers conferred upon him by the Act shall
be subject to appeal to the High Court. Though such an order does
not fall within any of the clauses of s. I04, C.P.C., still it is appealable
because the Indian Succession Act expressly provides otherwise. In
other words, such an order falls within the saving clauses of s. I04,
c C.P.C."

This decision cannot be said to be an authority for the proposition that -f
an appeal under Section 299 of the Indian Succession Act would be an appeal
expressly provided for under Section l 04 of the Code of Civil Procedure.

D The Calcutta High Court in that case was concerned with the question
as to whether an appeal would be maintainable or" not having regard to the
fact that the order was an interlocutory one and in that view of the matter the
said decision cannot be said to have any application in the instant case.
-+ -
E In Balai Lall Banerjee 's case (supra), again a question arose as to
whether an order for grant of probate or letters of administration is a decree
or not . It was held that as a formal decree was not required to be drawn up,
the same is not required to be annexed with the copy of the memorandum of
appeal.

F The decisions rendered by various High Courts would show that different
views have been taken on various aspects of the matter, namely, as regards
the nature of the order passed, the procedure to be adopted, applicability of
letters patent of the High Court, amount of court fee payable on a Memo of
Appeal etc.
G
Despite the fact that Section 299 of the Act states 1that all orders shall
be appealable, attention of the High Courts was engaged in laying down the
law as to whether even an interlocutory order would be appealable or not
and/or the extent of jurisdiction of the appellate court in relation thereto or
the procedure applicable therefor.
H
SUBAL PAUL v. MALINA PAUL 1101
The orders passed under Section 299 of the Act may be an interlocutory A
order determining the rights of the parties or a final order. When a final or.der
is passed in a contentious suit, as would be evident from the provisions
contained in Section 295 of the Act. the procedures of the Code of Civil
Procedure are required to be followed. Therefore. a final order passed between
the parties adjudicating upon the rights and obligations which are binding B
between the parties thereto and are enforceable, although may not be, stricto
sensu a decree within th.e meaning of Section 2(2) of the Code of Civil
Procedure Code but it is beyond any cavil that the same would be a judgment
within the meaning of Section 2(9) thereof.

While determining the question as regards clause 15 of the Letters C
Patent, the court is required to see as to whether the order sought to be
appealed against is a judgment within the meaning thereof or not. Once it is
held that irrespective of the nature of the order, meaning thereby whether
interlocutory or final, a judgment has been rendered, clause 15 of the Letters
Patent would be attracted.
D
The Supreme Court in Shah Babula/ Khimji's case (supra) deprecated
a very narrow interpretation on the word 'judgment' within the meaning of
clause 15.

This Court said:
E
"a court is not justified in interpreting a legal term which amounts
to a complete distortion of the word 'judgment' so as to deny appeals
even against unjust orders to litigants having genuine grievances so
as to make them scapegoats in the garb of protecting vexatious appeals.
In such cases, a just balance must be struck so as to advance the
object of the statute and give the desired relief to the litigants, if F
possible."

In Shah Babula/ Khimji 's case (supra), the Apex Court in no uncertain
terms referred to the judgment under the Special Act which confers additional
jurisdiction to the High Court even in internal appeals from an order passed G
by the Trial Judge to a larger Bench. Letters Patent has the force of law. It
is no longer res integra. Clause 15 of the Letters Patent confers a right of
appeal on a litigant against any judgment passed under any Act unless the
same is expressly excluded. Clause 15 may be subject to an Act but when it
is not so subject to the special provision the power and jurisdiction of the
High Court under Clause 15 to entertain any appeal from a judgment would H
1102 SUPREME COURT REPORTS [20031 I S.C.R.

A be effective.
This matter may be examined from another angle.

Sub-section (2) of Section I 04 of the Code of Civil Procedure provides
that no appeal shall lie from any order passed in appeal under "'this Section".
B This also shows that if appeal is provided for under any other law, Section
I 04 of the Code of Civil Procedure would have no application.

The decision of this Court in Shah Babula/ Khimji 's case (supra) has
been considered in some details by a Special Bench of the Calcutta High
Court in Mis. Tanusree Art Printers and Anr. v. Rabindra Nath Pal, (2000]
C 2 CHN 213 and 2000 (2) CHN 843. It was pointed out:

"If the right of appeal is a creature of a statute, the same would be
governed by the said statute. Whether an appeal under Clause 15 of
the Letters patent will be maintainable or not when the matter is
governed by a Special Statue will also have to be judged from the
D
scheme thereof. (e.g. despite absence of bar, a Letters Patent appeal
will not be maintainable from a judgement of the learned Single
Judge rendered under the Representation of People Act.)"

It was pointed out that in Shah Babula/ Khimji 's case (supra ) this
·E Court posed three questions namely:

"(I) Whether in view of clause 15 of the Letters Patent an appeal
under section I 04 of the Code of Civil Procedure would lie? 2)
Whether clause 15 of the Letters Patent supersedes Order 43 Rule I
of the code of Civil Procedure? 3) Even section I 04 o{ the CPC has
F no application, whether an order refusing to grant injunction or appoint
a receiver would be a judgment within the meaning of Clause 15 of
the Letters Patent?''

The Apex Court answered each of them from a different angle:

G (a) Section 104 of the Code of Civil Procedure read with Order 43
Rule I expressly authorizes a forum of appeal against orders falling
under various clauses of Order 43 Rule I to a Larger Bench of a High
Court without at all disturbing interference with or overriding the
Letters Patent jurisdiction.

H (b) Having regard to the provisions of section 117 and Order 49 Rule

..
SU BAL PAUL v. MALINA PAUL 1103
3 of the Code of Civil Procedure which excludes various other A
provisions from the jurisdiction of the High Court, it does not exclude
Order 43 Rule I of the CPC.

(c) There i~ no inco11sistency bet\~ 1 een section 104 read \Vith ()rder 43
Rule I and the appeals under Letters Patent, as Letters Pateot in any
way does not exclude or override the application under section I04 B
read with Order 43 Rule I which shows that these provisions would
not apply in internal appeals within the High Court"

The Letter< Patent establishing the High Court of Judicature at Calcutta
is extended to the Gauhati High Court. Clause 15 of the said Letters Patent C
provides as under:-

"Appeal from the Cou11s of original jurisdiction to the High Court in
its appellate jurisdiction-And we do further ordain that an appeal to
the said High Court of judicature at Fort William in Bengal from the
judgment (not being a judgement passed in exercise of appellate D
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 exercise of a revisional
jurisdiction, and not being a sentence or order passed or made in
exercise of the powers of superintendence under the provisions of
Section I07 of the Government of India Act, or in exercise of criminal E
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 notwithstanding anything hereinbefore provided, an
appeal shall lie to the said High Court or one Judge of any Division
Court, pursuant to Section I08 of the Government of India Act, on F
or after the first day of February 1929 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 fit one for appeal; but that the right of appeal from
other judgments of Judges of the said .High Court or of such Division G
Court shall be to Us, Our heirs or successors in Our or Their Privy
Council, as hereinafter provided."

Thus Clause 15 permits an appeal against the order passed by a Single
Judge of the High Court in the second forum. H
1104 SUPREME COURT REPORTS [2003] I S.C.R.

A This Court in National Sewing Thread Co. Ltd. Chidambaram v. James _
Chadwick and Bros Ltd. AIR (1953) SC 357 held that as regards a judgment
passed by a Single Judge of High Court ~xercising its power under Section
76 of the Trade Marks Act, a Letters Patent Appeal would be maintainable.
The said decision has been followed by this Court in Maharashtra State
B Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt, ltd. and
Ors., [1991] 2 SCC 637.

In Union of India and Ors. v. Aradhana Trading Co. and Ors. [2002]
4 SCC 447, this Court while referring to National Sewing Thread Co. 's case
(supra), distinguished the same on the ground that under the Arbitration Act,
C there exists a specific provision relating to an appeal.

In New Kenilworth Hotel (P) Ltd. (supra), this Court dealt with an
order passed by a Single Judge of the High Court in an appeal from or under
Order 39, Rule I Code of Civil Procedure. In that case, Section 104 of the
Code of Civil Procedure was, therefore, clearly attracted. The Court, however,
D observed:

"The question then is whether notwithstanding such prohibition,
though an order of injunction passed by the learned Single Judge in
the appellate jurisdiction. under Order 39, Rule I is a judgment, as
held by this Court in Shah Babula/ Khimji v. Jayaben D. Kania, an ..
E appeal would lie on the basis thereof. It is contended that an appeal
would lie to the Division Bench. We find no force in the contention.
It is true that the learned Judges comprising the Division Bench as
well as the Full Bench of the High Court construed that the ratio in .,.
Shah Babula! Khimji case would attract item (ii) of the analysis of the
learned Judges and, therefore, an appeal would lie to the Division
F Bench. We are of the view that the learned Judges, with due respect,
have not understood the scope of the judgment in Shah Babula/ Khimji
case in its proper perspective. Therein, the learned Single Judge
exercising the original jurisdiction of the High Court passed an order
in applications filed under Order 40, Rule I for appointment of a
G receiver and issue of injunction order under Order 39, Rule I."

The said decision is not applicable in the instant case inasmuch as the
learned Single Judge of the High Court was exercising an appellate power
provided under a special statute and not under Section I04 of the Code of
Civil Procedure. New Kenilworth (supra) was distinguished by this Court in +
H Chandra Kanta Sinha v. Oriental Insurance Co. ltd. and Ors., [2001] 6 SCC
SUBAL PAUL v. MALINA PAUL 1105

158 and therein National Sewing Thread Co's case (s"pra) was relied upon A
saying,:

.. Learned counsel for the respondents, however. argued that clause
10 provides that an appeal shall lie to the said' High Court only from
.. a judgn1ent passed in exercise of the appellate jurisdiction not being
a judgment passed in the exercise of the appellate jurisdiction'· and B
as the judgment of the learned Single Judge was passed in the appellate
jurisdiction, a letters patent appeal was not maintainable. In our view,
the contention of the learned counsel is based on a misreading of
clause 10. He has overlooked the vital words, namely "in respect of
a decree or order made in exercise of appellate jurisdiction by a court C
subject to the superintendence of the said High Court" in the first
limb of clause 10. If those words are also read along with the words
relied upon by the learned counsel, it becomes clear that the appellate
jurisdiction mentioned therein refers to a second appeal under Section
100 CPC (or under any provision ofa special Act) which is in respect
of a decree or order made in exercise of appellate jurisdiction in the D
first appeal, filed under Section 96 CPC (or under any provision of
a special Act) by a court subject to the superintendence of the High
Court. In other words, from a judgment passed by one Judge in
second appeal, under Section I 00 CPC or any other provision of a
special Act no letters patent appeal will lie to the High Court provided E
the second appeal was against a decree or order of a District judge
or a Subordinate Judge or any other Judge subject to the
superintendence of the High Court passed in a first appeal under
Section 96 CPC or any other provision of a special Act."

It was further held:
F
"In New Kenilworth Hotel (P) Ltd. case aggrieved by the order
of the trial court passed under Order 39 Rules (I) and (2), an appeal
under Section 104(1) CPC read with Order 43 Rule l(r) was filed
before the High Court which was disposed of by one Judge of the
High Court. From the order/judgment of one Judge, a letters patent G
appeal (second appeal) was filed before the Division Bench under
Clause 10 of the Letters Patent of the Orissa High Court. The Division
Bench of the High Court held that the letters patent appeal was not
maintainable. Having regard t_o the provision of Section 104(2), the
appeal before the Division Bench was barred. On appeal to this Court
it was held: (SCC p.466, para I 0) H
1106 SUPREME COURT REPORTS f20031 I S.C.R.

A "As held earlier. the right of appeal is a creature of the statute and
the statute having expressly prohibited the filing of second appeal
under sub-section (2) of Section 104, the right of appeal pro'vided
under clause I 0 of the Letters Patent would not be available.''

Therefore, reliance on .the Judgment of this Court in New
B Kenilwo11h Hotel (P) Ltd. case will be of no avail to the respondents."

We may notice that even in Municipal Corporation of Brihanmumbai
anti Anr. v. State Bank of India, [1999] 1 SCC 123, this Court while
interpreting the provisions of Section 218-D and 217(1) of the Bombay
Municipal Corporation Act, 1888, held that when an appeal is in the form of
C second appeal having regard to the bar contained in Section l OOA of the
Code of Civil Procedure, no fu11her appeal shall lie. It was observed:

"This section has been introduced to min,imize the delay in the finality
of a decision. Prior to the enactment of the above provision, under
the letters patent, an appeal against the decision of a Single Judge in
D a second appeal was, in certain cases, held competent, though under
Section I 00 of the Code of Civil Procedure, there was some inhibition
against interference with the findings of fact. The right of taking
recourse to such an appeal has now been taken away by Section l 00-
A of the Code of Civil Procedure (supra). Since an appeal under
E Section 217( I) of the Act is a first appeal in a second forum/court
and an appeal under Section 218-D of the Act is the second appeal
in the third forum/court, no further appeal would be competent before
the fourth forum/court in view of Section I 00-A of the Code of Civil
Procedure (supra)."

F In Prataprai N. Kothari v. John Braganza, [1999] 4 SCC 403, even in
a suit for possession only not based on title, a letters patent appeal was held
to be maintainable.

The decision of this Court in Sharda Devi v. State of Bihar, (2002] 3
G SCC 705 is also to the same effect, wherein in para 9 it was held:

"A Letters patent is the charter under which the High Court is
established. The powers given to a High Court under the Letters
Patent are akin to the constitutional powers of a High Court. Thus
when a Letters Patent grants to the High Court a power of appeal,
H against a judgment of a Single Judge, the right to entertain the appeal
SUBAL PAUL v. MALINA PAUL 1107

would not get excluded. unless the statutory enact111ent concerned A
excludes an appeal under the Letters Patent.'"

. Section 54 of the Land Acquisition Act. 1894 provides for an appeal
before the High Court and thereafter to the Supreme Court and despite the
same it was held that a letters patent appeal under clause 15 would be
maintainable. B
...\ For the aforesaid reasons, we are of the view that the order passed by
the Single Judge was appealable to Letters Patent Bench and the objection in
regard to maintainability of appeal was rightly overruled by the High Court.
Consequently, this appeal falls and is, accordingly, dismissed. We direct the
High Court to decide the letters patent. appeal expeditiously. C
R.P. Appeal dismissed.