SHASHIBAI Vs. REVABAI AGRAWAL

JUDGEMENT

(1.) THE facts giving rise to this reference are that a Civil Suit no. l-A/81 filed by the husband and father of respondents 1 (a) and 1 (b) respectively, late Chhotelal Agrawal for certain reliefs was decreed by judgment and decree dated 22-2-1991 passed by the learned Additional district, Judge, Harda Camp Sohagpur. The appellants filed First Appeal No. 86 of 1991 and a learned single Judge of this Court by judgment and decree dated 7-2-1996 dismissed the appeal. Aggrieved, the applicants filed Letters Patent Appeal No. 62 of 1997 under clause 10 of the Letters Patent. By order dated 12-9-2005, the Division Bench dismissed the Letters Patent Appeal because by Section 2 of the M. P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (for short 'the 1981 Adhiniyam'), clause 10 of the Letters Patent had been abolished with effect from 1st July 1981. Thereafter, the M. P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for short 'the 2005 Adhiniyam') was enacted by the Legislature of the State of madhya Pradesh. Sub-section (2) of Section 1 of the 2005 Adhiniyam provides that the 2005 Adhiniyam shall be deemed to have come into force on the 1st day of July, 1981. Sub-section (1) of Section 2 of the 2005 adhiniyam provides that an appeal shall lie from a judgment or order passed by one judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High court. In the proviso to sub-section (1) of section 2 of the 2005 Adhiniyam, it is stated that no appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Subsection (1) of Section 4 of the 2005 adhiniyam repeals the 1981 Adhiniyam and sub-section (2) of Section 4 of the 2005 adhiniyam states that notwithstanding such repeal, anything done or any action taken under or in pursuance of the said Act and which has attained finality shall not be reopened in any Court of law.

(2.) THE applicants filed M. C. C. contending that with the repeal of the 1981 adhiniyam which abolished the appeals under Clause 10 of the Letters Patent, the right of the applicants to file an appeal under clause 10 of the Letters Patent was revived and accordingly prayed that Letters patent Appeal No. 62 of 1997 be restored to file and be heard on merits. The respondent no. 2, on the other hand, contended that by the 2005 Adhiniyam, appeals under Clause 10 of the Letters Patent were not revived but only appeals against the orders passed by a learned single Judge of this Court under Art. 226 of the Constitution were revived because in Section 2 of the 2005 Adhiniyam, only appeals to the Division Bench of the High court from judgments and orders of learned single Judge made in exercise of original jurisdiction under Art. 226 of the Constitution was provided for with effect from 1st july 1981 and the 2005 Adhiniyam did not provide for any appeal against any order, judgment or decree passed by the learned single Judge in exercise of any other jurisdiction to the Division Bench.

(3.) BY order dated 10-10-2006, the Division Bench referred this matter to the Full bench. Since the question referred to the full Bench has not been appropriately worded, we re-formulate the question as follows :