ARJAN SINGH Vs. AMAR NATH

JUDGEMENT

(1.) Sub -Judge 1st Class (2), Shimla, passed a decree in suit No. 97/1 of 1976 on December 28, 1981 on the basis of a statement made by a referee, with whose statement the parties to the suit had agreed to abide The defendants in the suit were not happy with the decision. They assailed it in appeal (C. A. 25 -S/13 of 1982/C. A. 12 -S/13 of 1982) which came up for decision before the District Judge, Shimla. The learned District Judge set -aside the decree and by his judgment and order dated December 7, 1982 remanded the case for trial afresh. That decision was assailed by the plaintiff before this Court in F. A. O. No. 77 of 1983. A learned single Judge allowed the appeal on September 17f 1990 and while setting aside the judgment and order dated December 7, 1982 of the learned District Judge, restored the decree passed by the learned Sub -Judge (2), Shimla. The present appeal under Clause 10 of the Letters Patent constituting the High Court of Judicature at Lahore, as applicable to this Court on account of sections 7 and 17 of the Delhi High Court Act, 1966 and section 25 of the State of Himachal Pradesh Act, 1970, has been brought against that decision of the learned Single Judge. It was filed on November 1, 1990.

(2.) Shri K. D. Sood, who appeared before the learned single Judge on behalf of the plaintiff -respondeat in this appeal, appeared before us and has taken a preliminary objection regarding the maintainability of the appeal.

(3.) The submission of Shri Sood is that no appeal is now competent under the Letters Patent against the decision of a learned single Judge recorded in appeal against an order under section 104 read with Order XLII1 Rule 1 of the Code of Civil Procedure for various reasons. Firstly, section 104 (2) C. P, C. provides in terms that : "104 (2) No appeal shall lie from any order passed in appeal under this section..." Secondly, that on account of the introduction of section 100 -A in the Code by section 38 of the C P. C. (Amendment) Act 1976 (Act 104 of 1976) with effect from February 1, 1977 an appeal of the present nature stood abolished even under the Letters Patent.