V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. W.A. NO.380 OF 2010 (Decided on 19.11.2010) PANAPATRI PODHA …….. Appellant. .Vrs. KESHAB PODHA & ORS. …. …. Respondents. CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – S.100-A. For Appellant - Mr. Gautam Mukherji For Respondent- Mr. U.K.Samal Heard Mr. Goutam Mukherji, learned counsel for the appellant and Mr. U.K.Samal, learned counsel for the respondents. 2. This writ appeal is directed against the interlocutory order passed by the learned Single Judge dated 29.9.2010 passed in Misc. Case No.571 of 2009 and order dated 1.11.2010 passed in Misc. Case No.618 of 2010 arising out of R.S.A. No.289 of 2008 which is still pending before the learned Single Judge. 3. Mr. Mukherji, learned counsel for the appellant on the previous date of hearing i.e. on 16.11.2010 made oral submission before the Court to convert this writ appeal as Laters Patent Appeal. On that date Mr. Samal taken notice on behalf of the respondents and contended that the objection raised by the Office regarding the maintainability of the writ appeal is correct. So he requested the Court to list the matter today for preliminary hearing. 4. Mr. Samal, in support of his submission has placed reliance upon a Full Bench decision of this Court in the case of Mahammed Saud & Ors. Vs. Dr. Maj) Shaikh Mahfooz & Anr., reported in AIR 2009 Ori. 46 as well as on a Full Bench decision of the Madhya Pradesh High Court in the case of Smt. Seema Mitra Vs. Smt. Lotika Mitra, reported in AIR 1995 MP 128. He has also placed reliance on a Division Bench decision of Madhya Pradesh High Court in the case of Kamla Bajpai & Ors. Vs. Smt. Sharda Devi Bajpai, reported in AIR 2002 MP 262 wherein the aforesaid Full Bench decision of the M.P. High Court has been referred to in support of his legal submission against the interlocutory order passed in RSA, the writ appeal is not maintainable before this Court. He has also placed reliance upon Section 100-A of the Civil Procedure Code (CPC) which provides for No further appeal in certain cases. The provisions of the said Section is extract below : “100-A : Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.” 5. He has further placed reliance upon the decision of this Court in the case of Dhani Mohanty Vs. Hari Mohanty & Ors., reported in 27 (1961) CLT (Notes 157) at page 99 in support of the legal proposition that the miscellaneous appeal against the order passed in the in Misc. Case arising out of second appeal is not at all maintainable. It is submitted that except an appeal against a final decree, that could be passed by the learned Single Judge, no appeal against such any other order is maintainable. Therefore, the question of filing this writ appeal against an interlocutory order of the learned Single Judge does not arise and is not at all maintainable. Therefore, this writ appeal should be dismissed as not maintainable. 6. On the other hand, Mr. Mukherji, learned counsel for the appellant strongly rebutted the submission made by the learned counsel for the respondents placing reliance upon Section 100-A CPC and submits that the aforesaid provision prescribes for not filing an appeal against the order that may be passed against the final decree in the second appeal by the learned Single Judge of the High Court, however, it does not prohibits to file an appeal against an interlocutory order. Further it is submitted that Rule 27 of Chapter-VI of the Orissa High Court Rules provides that Misc. Application in respect of Second Appeal can be filed. Therefore, against the impugned order passed by the learned Single Judge in such miscellaneous petition in the second appeal, the writ appeal is maintainable. 7. With reference to the aforesaid rival legal contentions, we have very carefully examined the relevant provisions of the C.P.C. as well as the Full Bench decisions of this High Court and M.P. High Court. This aspect of the matter has been extensively considered by the Full Bench of this Court and laid down the law at paragraph 47 of the judgment which reads thus : “47. We have heard learned counsel for the parties patiently, noted the citations carefully, perused the materials meticulously and considered the submission pragmatically and for the discussions made above, we have arrived at the following conclusions :- (1) After introduction of S.100-A in the Code of Civil Procedure by 2002 Amendment Act, no Letters Patent Appeal is maintainable against a judgment/order/decree passed by a learned single Judge of a High Court. (2) The decision of a Division Bench of this Court in Birat Ch. Dagara case (supra) has not laid down the correct position of law. On the other hand, the conclusions arrived at by Division Benches of this Court in V.N.N. Panicker and Ramesh Ch. Das cases (supra) are held to be good law and are confirmed. (3) A writ appeal shall lie against the judgment/orders passed by a learned single Judge in a writ petition filed under Art.226 of the Constitution of India. In a writ application filed under Arts.226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Art.226, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/decree passed by a Single Judge exercising powers of superintendence under Art.227 of the Constitution. (4) No Letters Patent Appeal shall lie against judgment/order passed by a learned single Judge in proceedings arising out of Special Acts.” 2 8. Further by careful reading of the aforesaid two judgments of the M.P. High Court it appears that one judgment i.e. Kamla Bajpai (supra) is before the amendment of Section 100-A CPC, which came into force w.e.f. 1.7.2002. However, the aforesaid Full Bench of the M.P. High Court has rightly held that no appeal lies against the order passed in the second appeal. 9. Therefore, in our considered view, the decision rendered in the aforesaid cases are applicable in the fact situation of this case against the appellant herein. Further, in view of the amended provision of Section 100-A CPC, no LPA is maintainable against an interlocutory order. The aforesaid submissions made by Mr.Mukherji, learned counsel for the appellant is not acceptable in view of the amended provision of Section 100-A and in view of the Full Bench decision of this Court and Madhya Pradesh High Court referred to supra. In view of the above, the writ appeal is not maintainable and accordingly the same is dismissed. Writ appeal dismissed. 3