SUSANTA KUMAR CHOUDHURY Vs. BIRENDRA KUMAR DEB ROY

JUDGEMENT

(1.) The preliminary objection taken in these appeals is regarding the maintainability of the appeals.

(2.) We have heard Mr. S. Deb, the learned senior counsel for the appellant and Mr. A.M. Lodh, the learned senior counsel for the respondents in LPA No. 1 of 1996. We have also heard Mr. B. Das, the learned senior counsel for the appellants and Mr. S. Lodh, the learned counsel for the respondent regarding maintainability of the appeals.

(3.) The submission of the learned counsel for the respondents is that an appeal is provided under the Indian Succession Act under Section 299 and that this appeal decided by the learned Single Judge is final and no further appeal lies. It is the further submission of the learned counsel that Section 299 opens itself that the order passed by the learned District Judge is appealable and as such it is not a judgment. The learned counsel for the respondents relies on Section 100 A and 104 sub-section (1) & (2). A bare reading of Section 100 A will show that a Letters Patent does not lie from an appellate decree or order passed by a Single Judge of a High Court. In this particular case, the matter which was being heard by the learned Single Judge was not an appellate decree. It was a First Appeal before the learned Single Judge. So, Section 100 A does not help. Next we come to Section 104 sub-section (1) & (2). This Section 104 sub section (1) & (2) came up for consideration before the Supreme Court reported in (1996) 1 SCC, 49 and (1997), 3 SCC, 462. (1996) 1 SCC, 49 is a case where there was an appeal under Order 43 Rule l(r) of C.P.C. The appeal before Single Judge of High Court was against an interim injunction order of City Civil Court and that was decided and thereafter Letters Patent Appeal was filed before the Division Bench and Supreme Court pointed out that no further appeal would lie against the order of the Single Judge by virtue of Section 104(2). In para 6 itself the Supreme Court pointed out that against an appellate order no Letters Patent Appeal will lie. So, this case is also of no help to the respondents. The next case is (1997) 3 SCC 462. The Supreme Court pointed out as follows :-