IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.166 of 2009 ***** 1. Dr.Vijay Kumar Singh son of Sri Kanhaiya Singh 2. Dr. Shila Kumari W/o Dr.Vijay Kumar Singh Both resident of village Udaipur, P.S. Arrah (Mofussil), District Sahabad presently resident of Mahabir Tola, Sahid Bhavan, Arrah Town, District-Bhojpur. …. …. Defendant-Appellant-Appellant Versus 1. Radhey Shyam Singh son of Sri Sarba Narain Singh, Resident of Mohalla Karman Kasba Tola, Arrah Town, P.S. Nawadah, District-Bhojpur. …. …. Plaintiff-Respondent-Respondent 2. Birendra Pratap Sinha, son of Brijendra Pratap Sinha, resident of Mohalla Mahabir Tola, Arrah Town, P.S. Arrah, District-Bhojpur. …. …. Defendant-Respondent-Respondent 3. Smt. Pintu Devi W/o Bhuneshwar Singh, resident of village Mushar, P.S. Udwantnagar, District Bhojpur, presently K.G. Road, Arrah Town, Amirchand by the side of Home Guard Office, P.S. Nawadah, District- Bhojpur. …. …. Defendant-Appellant-Respondent ----------- For the Appellants : Mr. Jagnnath Singh, Advocate For the Respondent No.1:Mr. Nityanand Tiwary, Advocate For the Respondent No.2:Mr. Ramchandra Singh, Advocate ------------ 7. 16.4.2010. Though this appeal was listed for orders, yet regard being had to the office notes, which points out about the maintainability of the appeal, we have thought it apt to deal with the same. In this appeal, preferred under Clause X of the Letters Patent, the challenge is to the order dated 20th October, 2008 passed by the learned Single Judge in I.A. No. - 2 - 7098 of 2007 filed in F.A. No. 266/07. This Court in Balbhadra Singh @ Balbhadra Nr. Singh v. Ram Binod Singh & Ors., 2004(4) PLJR 879 (L.P.A. No. 833 of 2004) in paragraphs 15 and 17 has held as follows: - “15. As stated above, there the question of what would be effect of section 100A of the Code was not considered by the Apex Court, on the other hand, from the reading of the judgment (paragraph 20), it appears that the Apex Court stated that section 104 of the Code recognizes appeals provided under special statute. It does not, therefore, bar any further appeal also, if the same is provided for under any other Act, for the time being in force. However, in the same paragraph it is observed, “Whenever the statute provides such a bar, it is so expressly stated, as would appear from section 100A of the Code of Civil Procedure”. The settled law, as appears from the judgment of the Apex Court, is that right to hear appeal under the Letters Patent is the constitutional power of the High Court and no exclusion can be inferred unless the statute concerned has expressly barred appeal under the Letters Patent or further appeal. However, in none of the cases aforementioned, the effect of section 100A of - 3 - the Code was under consideration. Section 100A of the Code, as quoted above, provides, inter-alia, that notwithstanding any thing contained in any Letters Patent for any High Court or in any 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. So, in view of this non obstante clause, after the new amendments, even if there is no express prohibition limiting the Letters Patent Appeal or there is a provision of a Letters Patent Appeal, further appeal is barred from the judgment or order passed by a learned single Judge in exercise of the first appellate jurisdiction. 17. The said view finds support from a decision of the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, reported in A.I.R. 2003 S.C. 189, where the vires of the new amended provision of the Code were challenged and the said provision of section 100A of the Code was held to be valid. In paragraph 15 of the said judgment, it was observed as follows: - “15. Section 100A deals with two - 4 - types of cases which are decided by a single Judge. One is where the single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a single Judge or by a Division Bench of the High Court where the regular first appeal so filed is heard by a Division Bench, the question of there being an intra-Court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide further regular appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the work load unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-Court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100-A.” - 5 - In view of the aforesaid, we do not have any shadow of doubt that the judgment and decree passed in the First Appeal in terms of Section 100-A of the Code of Civil Procedure could not have been entertained by way of Letters Patent Appeal. It is well settled proposition of law that when the final judgment passed in an appeal cannot be assailed in an intra-Court appeal, the interlocutory order passed in the said appeal cannot be assailed in appeal. In view of the aforesaid analysis, we conclude and hold that the appeal is not maintainable and, accordingly, the same stands dismissed. Pawan/- (Dipak Misra, CJ) (Mihir Kumar Jha, J)