DION DE SILVA, ALIAS BUNNY DE SILVA, SON OF S B DE SILVA, AGED Vs. OLIVE ANTONIETA NAZARETH, AGED 70 YEARS, UNMARRIED, LANDLADY

JUDGEMENT

(1.) This is an Appeal purported to be filed under Clause 15 of the Letters Patent of the High Court of Judicature at Bombay, from a Judgment of a Single Judge of this High Court dated 22nd October, 1990. The Judgment which was delivered by a Single Judge of this High Court was a Judgment in Appeal from Order No.52 of 1990. The Appeal before the learned Single Judge arose from an Order passed by the Civil Judge, Senior Division, Mapusa on 16th of July, 1990, in certain inventory proceedings bearing No.29 of 1913. The learned Single Judge, after considering in detail the various points in appeal before him upheld, the Order of the learned Civil Judge, Senior Division and dismisses the appeal on merit. From the Judgment of the learned Single Judge of the High Court, the present Appeal is sought to be preferred under Clause 15 of the Letters Patent.

(2.) Mr. Colaco, learned advocate appearing for the appellant, has drawn our attention to a decision of the Acting Judicial Commissioner in Civil Appeal No.12 of 1977 and other Appeals which is dated 19th of February, 1981. The Judicial Commissioner has held that Appeals in inventory proceedings are to be considered as Appeals from Orders within the meaning of the provision contained in Section 104 of the Civil Procedure Code r/w Order XLIII of the Code of Civil Procedure. It is an admitted position that the Judgment which has been delivered by the learned Single Judge of this High Court in the present case is a Judgment in Appeal from Order under Section 104 of the Civil Procedure Code. If so under Section 104(2) of the Code of Civil Procedure, no further appeal can lie from any Order passed in Appeal under Section 104.

(3.) The reliance placed by the appellant on Clause 15 of the Letters Patent is misplaced. The Supreme Court in the case of Shah Babulal Khimil v. Jayaben D. Kania and another, 1981 AIR(SC) 1786 has held inter alia that there is no inconsistency between Section 104 read with Order XLIII, Rule land Appeals under the Letters Patent. The Supreme Court has said that the Letters Patent do not, in nay way, exclude or override the application of Section 104, read with Order XLIII, Rule 1 nor is there anything in the Letters Patent which would indicate that the provisions of Section 104 read with Order XLIII, Rule 1 would not apply to internal appeals within the High Court.