MIS. NEW KENILWORTH HOTEL (P) LTD. versus ORISSA STATE FINANCE CORPORATION AND ORS.

Citation: [1997] 1 S.C.R. 395 · Decided: 20-01-1997 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed
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Judgment (excerpt)

MIS. NEW KENILWORTH HOTEL (P) LTD. 
v. 
ORISSA STATE FINANCE CORPORATION AND ORS. 
JANUARY 20, 1997 
[K. RAMASWAMY AND G.T. NANAVATI, JJ.] 
Code of Civil Procedure, 1908: Sections 2(9), :1(1) and 104(2}-0rder 
39 Rule (1}-0rder 43 Rule (l)(r)-Appellate order-Letters Patent appeal 
against-Permissibility of -Suit filed by appellant seeking permanent injunc-
A 
B 
tion restraining respondents from disturbing its possession-Pending suit status C 
quo granted by Trial Court-On appeal by respondents a single Judge of the 
High Court vacated the status quo orde1~Letters patent appeal pref e1Ted by 
appellant before Division Bench held not maintainable-Appeal before 
Supreme Court-Held Division Bench of the High Court was right in holding 
that Letters Patent Appeal would not- lie against an order of the single D 
Judge-Right of appeal is a creature of status--Filing of second appeal having 
been expressly prohibited under section 104(2) the right of appeal provided 
under clause JO of the Letters Patent was not available to appellant. 
Sukuri Dibya & Ors. v. Hemalata Panda, (1990) 32 OJD 431 (Civil) 
and Birendra Kr. Majhi v. Sitamani Bewa, (1992) 34 OJD 473 (Civil), E 
disapproved. 
Resham Singh Pyara Singh v. Abdul Sattar, [1996] 2 SCC 49, relied 
on. 
Shah Babula/ Khimji v.Jayaben D.C. Kania & Anr., [1981] 4 SCC 6, 
explained, and held inapplicable. 
· 
Madhusudan Vegetable Products Co. Ltd. Ahmedabad v. Bapa Chemi-
cals Vapi & Ors., AIR (1986) Guj. 156 and Firm Chhunilal Laxman Prasad 
v. Mis Agarwal and Co. & Ors., AIR (1987) MP 172, approved. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 350-352 
of 1997. 
From the Judgment and Order dated 16.12.96 of the Orissa High 
F 
G 
Court in A.H.O. Nos. 40-42 of 1995. 
H 
395 
396 
SUPREME COURT REPORTS 
[1997] 1 S.C.R. 
A 
Dr. AM. Singhvi, Additional Solicitor General, Anil B. Diwan, H.N. 
Salve, Y. Das, C. Mukhopadhyay and Rakesh K. Sharma for the Appellant. 
Santosh Hegde, N. Ganpathy, AS. Bhasme and Bibek Mohanti for 
the Respondents. 
B 
The following Order of the Court was delivered : 
·Leave granted. 
These appeals by speciial leave arise from the judgment and order of 
C the High Court of Orissa, made on December 16, 1996 in AH.O. Nos. 
40-42/95. 
The admitted facts are that the appellant had filed a suit for decla-
ration that the steps taken by the respondents under section 29 of the State 
Financial Corporation Act were illegal and sought permanent injunction 
D restraining them from disturbing it~ possession. Pending suit, they sought 
ad _interim injunction not to dispossess them from the hotel. The trial Court 
by order dated July 12, 1994 granted status quo whereby the appellant 
remained in possession of the suit premises. On appeal filed by the respon-
dents, the learned single Judge vacated the status quo order by order dated 
E May 18, 1995. Feeling aggrkved the appellant filed Letters Patent Appeal. 
By the impugned order the Division Bench has held that the appeals are 
not maintainable. Thus this appeal by special leave. 
Shri AM. Singhvi, learned Addi. Solicitor General appearing for the 
appellant, contends that under Clause 10 of the Letters Patent an appeal 
F would lie against the judgm1~nt of the learned single Judge to the Division 
Bench. Though the order granted status quo by the trial court was vacated 
by the High Court, it is a judgment within the meaning of Section 2 (9) of 
the Code of Civil Prcicedure, 1908 (for short, the 'Code'). Therefore, the 
bar under Sec. 104 (2) of the Code is not attracted by operation of Sec. 4 
G 
(1) of the Code. In support thereof, he placed strong reliance on the 
judgment of the Division Bench of that Court in Sukuri Dibya & Ors. v. 
HemaJata Panda, [1990] 32 OJD 431 (civil) and a Full Bench Judgment of 
that Court in Birendra Kr. Majhi v. Sitamani Bewa, [1992) 34 OJD 473 
(civil), He also contends that though this Court .has considered the non-
maintainability of an appeal by operation of Sec. 104 (2) of the Code read . 
H with Order XLIII Rule l(r), the above distinction was not brought to the 
M/SNEWKEMLWORTIIHOTELv. ORISSASfATEFINANCECORPN. 
397 
notice of this Court and that, therefore, the Full Bench judgment of the A 
High Court still holds the field. We find no force in the contention. 
It is settled legal position that right of appeal is a creature of the 
statute. Against an interlocutory order, an appeal has been provided under 
Sec. 104 (1) of the Code read with Order XLIII Rule 1. In respect o
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