Case: P.S. Sathappan(Dead) By Lrs Vs. Andhra Bank Ltd

2. Although these appeals involve common questions of law, the factual matrix of the matter would be noticed from Civil Appeal No. 689 of 19983. The First Respondent herein filed a suit against the Appellant herein in the Court of II Addl. Subordinate Judge, Coimbatore which was marked as O.S. No. 403 of 1974. The said suit was decreed on or about 15.4.1976. An execution petition was filed by the First Respondent-decree holder for executing the said decree. In the said execution proceeding for realization of the decretal amount the property belonging to the Appellant herein was put to auction. The validity of the said auction came to be questioned by the Appellant by filing an Execution Application on or about 8.10.1979 praying therein for setting aside the court auction sale held on 26.1979 in respect of Ginning factory situate at Tiruppur named and styled Sree Krishna Ginning Factory. The said application was marked as Executive Application No. 419 of 1979. The said application was dismissed by the Execution Court on 10.10.1985 against which an appeal was preferred by the Appellant which was also dismissed by a learned Single Judge of the Madras High Court by a judgment and order dated 8.10.1990. A Letters Patent Appeal there against purported to be in terms of Clause 15 of the Letters Patent of the Madras High Court was filed by the Appellant which was dismissed by a Full Bench of the Madras High Court by a judgment and order dated 22.8.1998 holding that in terms of sub-section (2) of Section 104 of the Code, an appeal against an order passed by the Appellate Court under Order XVIII Rule 1 read with Section 104 of the Code, was not maintainable. A certificate of fitness, however, in terms of Article 133 of the Constitution of India was prayed for by the Appellant and granted by the said Full Bench. When the matter was placed before a Division Bench of this Court, it noticed a conflict of opinion between a decision of a 3-Judge Bench of this Court in New Kenilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation and others (1997) 3 SCC 462 ) and a two Judge-Bench in Resham Singh Pyara Singh vs. Abdul Sattar (1996) 1 SCC 49 ), on the one hand, and Constitution Bench decision in Gulab Bai and Another vs. Puniya (1966(2) SCR 102), on the other, and referred the matter to a Constitution Bench observing:"We are aware of the fact that Clause 15 of the Letters Patent applicable to Madras High Court was similar to Clause 10 applicable to Orissa High Court which was construed in the case of New Kenilworth (supra). This Court did not, in New Kenilworths case, consider the effect of the decision in Gulab Bais case (supra). Furthermore, reference in Clause 15 of the Letters Patent which excludes the applicability of the same in relation to a judgment passed in exercise of appellate jurisdiction in respect of a decree or other made in exercise of appellate jurisdiction by a court subordinate to the superintendence of the High Court would prima facie indicate that it is only where the Single Judge is hearing an appeal from an appellate order of the court subordinate to it that the said clause 15 would not applyIn our opinion, the matter is not free from doubt, especially in view of the decision of the Constitution Bench in Gulab Bais case (1966 (2) SCR 102 ) and it would be appropriate therefore that the papers are placed before Honble the Chief Justice for referring the case to a larger Bench, in view of not only the conflict in decisions which is stated to be three but also in view of the importance of the point in issue, namely, the effect of the provisions of Section 104(2) vis-a-vis Clause 15 of the Letters Patent4. That is how the matter is before us.

Reasoning: 28. We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case Section 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What Section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench.""30. We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that Section 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now means the Division Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that Section 588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of Section 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain vs. Savi [AIR 1921 PC 80], their Lordships observed as follows:Section (sic Clause) 15 of the Letters Patent is such a law, and what it expressly provides, namely an appeal to the High Courts appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by Orders and Rules under the Code of Civil Procedure, 1908, are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal31. Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that Order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India vs. Mohindra Supply Co. [(1962) 3 SCR 497 : AIR 1962 SC 256 ], this Court made the following observations:The intention of the legislature in enacting sub-section (1) of Section 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by Section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by Section 104(1) of the Code of Civil Procedure, 190832. Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by the Section 104(1) of the Code of 1908 and the decision therefore fully supports the arguments of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43 Rule 1 of the Code of 1908."we are of the opinion that the decision of the Allahabad High Court on this point is bases on a serious misconception of the legal position. It is true that Section 104 was introduced by the code 1908 and the aforesaid section, as we have already indicated clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once Section 104 applies and there is nothing in the Letters Patent to restrict the application of Section 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will le to the Division Bench. Secondly, a perusal of Clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that it is in cases of appeals decided by a Single Judge under Section 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise29. Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (1) of Section 104 CPC provides for an appeal from the orders enumerated under sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided namely,1) orders enumerated in sub-section (1)2) appeals otherwise expressly provided in the body of the Code and3) appeals provided by any law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force30. As such an appeal is expressly saved by Section 104(1). Sub- clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e. those Orders against which an Appeal under "any other law for the time being in force is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative Intent of introducing Section 4 C.P.C. and the words by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under any other law for the time being in force undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in Sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows:"4. Savings : (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that an appeal would not lie" or order will be final are not sufficient. In such case, i.e. where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads as follows:"100A. No further appeal in certain cases - 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 appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal is specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, section 100A reads as follows:"100A. No further appeal in certain cases - 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."To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal31. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law32. Applying the above principle to the facts of this case, the appeal under clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law.