SASHIKALA PADHI Vs. HIREN GHOSH

JUDGEMENT

(1.) THE question that has been posed for answer in this appeal under the Letters Patent is: If an appeal from the judgment of a Single Judge passed in an appeal under Order 43, Rule 1 of the Code of Civil Procedure (for short, 'the Code') is competent having regard to Sub -section (2) of Section 104 of the Code.

(2.) TO appreciate the question involved, the barest outline need be given. Defendant No. 19 filed an appeal in this Court under Clause (d) of Rule 1 of Order 43 of the Code against an order passed by the trial Court rejecting her application filed under Order 9, Rule 13 for setting aside of an ex pane decree passed against her and other defendants. This Court accepted the appeal, vacated the order of dismissal of the application filed under Order 9, Rule 13 and allowed the same but left the matter to the trial Court to consider if on the facts and in the circumstances the decree should be set aside in its entirety or to the extent so far as that, related to defendant No. 19. Aggrieved by the order of the learned Single Judge allowing defendant No. 19's application under Order 9, Rule 13, the plaintiff filed this appeal under Clause -10 of the Letters Patent. Letters Patent constituting the High Court of Judicature at Patna was made applicable to this Court by the Orissa High Court Order, 1948;

(3.) MR . Misra, the learned counsel for the appellant, contended that Clause -10 of the Letter's Patent provided for an appeal from the judgment of one Judge not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction of this Court, subject to the superintendence of the said High Court, to the High Court; It was in absolute terms and the right of appeal was not controlled or regulated by Section 104 of the Code. In other words, he argued that Section 101 did not control the internal appeals in the High Court which are governed by the. Letters Patent. He relied upon the decisions in Board of Governors, St. Thomas School and Ors. v. A. K. George and Anr. (AIR 1984 Cal. 208), Shrichand v. Tejinder Singh and Ors. (AIR 1979 M. P. 76) and V. T. V. Rangacharyulu and Anr. v. Sriram Gnaneswar (AIR 1976 A P. 301). In the Calcutta case, the suit was filed on the Original Side Of the High Court of Calcutta. The appeal was filed under the Letters Patent against order passed by the learned Single Judge rejecting application filed by the defendants seeking the revocation of leave to sue granted Under Section 92 of the Code. It was held that though appeal was not provided under Order 43 -against an order of the nature: - passed by the learned Single judge, appeal lay under Clause 15 of the Letters Patent and was not barred by Section 104. There was no inconsistency between the Letters Patent jurisdiction and Section 104 read, with Order 41. Rule 1 of the Code. Reliance was placed upon the decision in Mathura Sundari Dassi v. Haran Chandra Saha (AIR 1916 Cal. 361) where it was held that the effect of Section 104 was not to take away a right of appeal given under Clause -15) of the Letters Patent. Shrichand's case (supra) is the closest to the case on hand. There an application under Order 9, Rule 13 having been dismissed an appeal under Order 43, Rule 1(d) was filed in the High Court. The learned Single Judge accepted the appeal and set aside the order rejecting the application filed under Order 9, Rule 13 and the ex parte decree. An. appeal was carried to the Division Bench under the Letters Patent. The competency of the appeal was challenged with reference to Section 104 of the Code. The learned Judges relied upon a Division Bench decision of the Nagpur High Court in Ganpati v. Pilaji (AIR 1956 Nag. 211) where it was held that Section 104 applied to appeals to High Court from Courts subordinate to it. It did not deal with appeals from a Single Judge of the High Court to a Bench under the Letters Patent. The appeals under the Letters Patent could not, therefore, be barred by Section 104 in the absence of an express provision. The learned Judges of the Madhya Pradesh High Court negatived the objection to the competency of the appeal and held that the appeal lay under the Letters Patent. Rangacharyulu's case (supra) was not a case where appeal was filed against an order passed in an appeal under Order 43, Rule 1 but the order appealed against was an original order passed by the learned Single Judge in an appeal. Hence, the said case is not an authority on the question.