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Report No. 144

5.1.2. Question for consideration.-

When an order is passed by a single Judge of the High Court in an appeal from an order passed by a lower court, the question often arises whether an appeal under the Letters Patent is maintainable against such an order

5.1.3. According to one view, the bar against appeal contained in section 104(2) operates in such cases.1 But according to the other view, it does not so operate.2

1. Bombay, Gujarat, Andhra Pradesh and Kerala (see infra).

2. Madhya Pradesh and Madras, (see infra).

5.1.4. In the Bombay case,1 the order of injunction had been passed by the City Civil Court Bombay, under Order 39, rules 1 and 2 of the Code. The party against whom the order was passed appealed to the Bombay High Court, and the appeal was allowed by a single Judge. From this appellate order, an attempt was made to take a Letters Patent Appeal to the Division Bench of the High Court, but the Division Bench held that no such appeal was maintainable in view of section 104(2) of the Code. There were earlier rulings of the same High Court, to the same effect.2

1. Pandey, Misra and Co. v. Anil Upendra Pitale, AIR 1989 Born 72.

2. Obedur Rahman v. Ahmedali Bharucha, AIR 1983 Born 120 (121), para. 8 & 9 (DB); Charity Commissioner v. Rajendra Singh, AIR 1984 Born 478, following Shah Babulal v. Jayaben D. Kania, AIR 1981 SC 1786.

5.1.5. According to the Gujarat High Court also, a Letters Patent appeal is barred in such a situation.1

1. Madhusudan Vegetable Products v. Rupa Chemicals, AIR 1986 Guj 156 (Gokulkrishnan, C.J. & S.B. Majumdar, J.).

5.1.6. This is also the Kerala view.1

1. Abraham v. Illani, AIR 1981 Ker 129 (130, 131), para. 6 (relying on the practice of the Kerala High Court with reference to section 5, Kerala High Court Act, 1958).

5.1.7. The Madhya Pradesh High Court has, however, held that a Letters Patent Appeal from an appellate order under section 104 is not barred.1

1. Shrichand v. Tejinder, AIR 1979 MP 78 (82), para. 11 (DB).

5.1.8. This is also the Madras view.1-2

1. V.S. Bhoopathi Vijaya Raghava Chettiar v. Radha Rukmini Ammal, (1984) TNLJ 92, referred to in Pandey, Mishra & Co. v. Anil Upendra Pitale, AIR 1989 Born 72.

2. Rukmani v. H.N. Thirumalai Chettiar, AIR 1985 Mad 283 (284), para. 3 (DB).

5.1.9. The Andhra Pradesh High Court1 to different from the Madras High Court and pointed out that the latter did not refer to the decision of the Supreme Court2 in Shah Babulal Khimji's case. Subsequently, the Madhya Pradesh High Court(' examined the decision of various High Court3and, relying on the decision of the Supreme Court, held that a Letters Patent appeal from the order of the single Judge of the High Court passed in appeal under Order 43, rule 1 is incompetent on account of the bar contained in sub-section (2) of section 104.

1. Ghantasala Seshamma v. Gollapalli Rajaratnam, AIR 1990 AP 19.

2. Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786.

3. B.S. Adityan v. Fencying Association of India, AIR 1991 MP 316 (DB).

5.1.10. In the above circumstances, a clarification of the law is needed.



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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