MT ABHILAKHI Vs. SADA NAND

JUDGEMENT

(1.) The question that has been referred for decision to the Full Bench is a short one, namely: Whether under the provisions of the Civil Procedure Code (Act 5 of 1908), an application for review of a judgment, passed by a Bench hearing an appeal from the decision of a single Judge of the Court under C1.10 of the Letters Patent of the Allahabad High Court, lies.

(2.) The answer to the question depends on the further question whether the Civil Procedure Code applies to a hearing of a Letters Patent appeal. By Section 117, Civil P.C., the provisions of the Code except as provided therein, apply to chartered High Courts. Unless therefore the hearing of a Letters Patent appeal comes within the exceptions mentioned in Section 117 the provision of the Civil Procedure Code would apply to such an appeal. It is conceded that the exceptions enumerated do not apply to such an appeal except Rule 35, Order 41, Civil P.C. The Bench of a High Court hearing an appeal from the decision of a single Judge is as much a High Court as the single Judge himself. The Letters Patent declare that certain appeals would lie to the High Court : see Clause 11. The High Court consists usually of more than one Judge, and by the Letters Patent the High Court is to frame rules by which it is to be settled what kind of cases would go before what number of Judges. The Letters Patent contemplate that there may be appellate decisions in certain cases by a single Judge. In such eases they provide that a further appeal would lie to two or more Judges of the same Court. A Letters Patent appeal therefore is as much an appeal to the High Court as any other appeal. In any case, the Judges composing the Bench hearing the Letters Patent appeal are as much a High Court as Judges hearing, say, a first appeal from the judgment of a Subordinate Judge or a District Judge. The procedure to be applicable is that provided by Order 41, Civil P.C. excepting Rule 35: see Order 49. Rule 3, Civil P.C., last clause.

(3.) It is therefore clear, that the procedure before and at the hearing, of a Letters Patent appeal by a Bench of the High Court, and the delivery of the judgment, are all governed by Order 41, Schedule 1, Civil P.C.