SUSHILABAI LAXMINARAYAN MUDLIYAR Vs. NIHALCHAND WAGHAJIBHAI SHAHA

JUDGEMENT

(1.) - Both these appeals can, be disposed of on a short ground. Aggrieved against the order of learned single Judge of Bombay High Court dated 26-4-88, the appellants before us, filed a Letters Patent Appeal before the Division Bench of the High Court. The Division Bench referred the matter to a Full Bench. The Full Bench by order dated 18-7-1989 in Sushilabai Laxminarayan Mudaliyar v. Nihalchand Waghajibhai Shah, 1989 Mah LJ 695, after dealing with the question referred, sent the case back to the Division Bench for deciding the question of the maintainability of the Letters Patent Appeal. The Full Bench referred to decisions of this Court in Umaji Kesho Meshram v. Radhikabai w/o Anand Rao Banapurkar, (1986) 1 SCR 731 : (AIR 1986 SC 1272) and an unreported Judgment of this Court in Civil Appeal No. 520 of 1989 Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Wative, decided on January 27, 1989 and observed as under:

(2.) The matter then went back to the Division Bench and the Division Bench by a short cryptic order held that the impugned order of learned single Judge indicated that in truth and substance it is passed under Art. 227 of the Constitution of India. The Division Bench held that the appeal was not maintainable and in that view of the matter dismissed the appeal.

(3.) We have heard learned Counsel for the parties and have also perused the writ petition filed by the respondents in the High Court. In our view the Division Bench was totally wrong in holding that the impugned order of the learned single Judge indicated that in truth and substance it was passed under Art. 227 of the Constitution. The grounds taken in the writ petition unmistakably go to show that it was a petition under Art. 226 and the order passed by the learned single Judge was also under Art. 226. This Court in Umaji's case (AIR 1986 SC 1272) (supra) had laid down as under (at pp. 1320-21 of AIR):