LexP.S. SATHAPPAN (DEAD) BY LRS versus ANDHRA BANK LTD. AND ORS.
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A B c P.S. SA THAPPAN (DEAD) BY LRS v. ANDHRA BANK LTD. AND ORS. OCTOBER 7, 2004 (N. SANTOSH HEGDE, S.N. V ARIA VA, B.P. SINGH, H.K. SEMA AND S.B. SINHA, JJ.] Code of Civil Procedure, I 908: S. / 04(1) rlw or 43 R. l andS. l 04(2)-Bar under S. I 04(2)-Applicability to appeals permitted by any law inforce~Nature of-Held, S.104(1) rlw Or. 43 R. I confers additional powers of appeals against orders passed in appeal under S.104(1)-Thus, S.104(2) does not bar appeals permitted by any law in D force. S. I 04(1)-Scope of-Explained S.104(2) & (1) and 4 and JOO-A (prior to its amendment by Act 22 of 2002)-Bar under S.104(2)-Applicability of to appeal under c/.15 of the E Letters Patent of the Madras High Court-Held, S.104(1} specifically saves LPAs and the bar under S.104(2) does not apply thereto-A harmonious construction of S. I 04 leads to no other conclusion-Thus, the words in S.100- A are not by way of abundant caution. Ss. 3 and 9-Powers and position of District Court vis-a-vis-High F Court-Discussed Ss.96-103,104 and 105-Nature of appeals under-Discussed High Courts-Letters Patent-Legal status-Primacy over CPC in case of conflict with-Explained-Letters Patent of Bombay High Court-Letters G Patent of Madras High Court. Precedents-Ratio decidendi-Principles of culling out of-Explained- Constitution of India, Art. 141. The question involved in these appeals against the judgments of the II 188 P.S. SATHAPPAN v. ANDHRA BANK LTD. 189 Madras High Court is the interpretation of Section 104 C.P.C. vis-a-vis A Clause 15 of the Letters Patent of the High Court of Madras. It was held by the High Court of Madras that a Letters Patent Appeal is not maintainable against an order passed by a Single Judge of the High Court sitting in Appellate Jurisdiction. Hence the appeals. When the appeals came before a Division Bench of this Court, it B noticed a conflict of opinion between a three Judge Bench of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors., [1997] 3 SCC 462 and a two Judge Bench in Resham Singh Pyara Singh v. Abdul Sattar, [1996) 1 SCC 49, on the one hand and a Constitution Bench decision in Guiab Bai and Anr. v. Puniya, (1996) 2 SCR 102 on the C other hand and referred the matter to a Constitution Bench. Thus these appeals are before the Constitution Bench. Allowing the appeals and remitting the matter back to the High Court, the Court D HELD: (Per majority - S.N. Variava, J. for himself and B.P. Singh and ' H.K Serna, JJ.] 1.1. The unanimous view of all Courts till 1996 was that Section 104(1) C.P.C. specifically saved Letters Patent Appeals and the bar under Section 104(2) did not apply to Letters Patent Appeals. The view has been E that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words 'Letters Patent' but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred. [262-F) F 1.2. A contrary view was adopted by a 2 Judge Bench of this Court. In this case there was an Appeal, before a Single Judge of the High Court, against an order of the City Civil Court granting an interim injunction. The question was whether a Letters Patent Appeal was maintainable G against the order of the Single Judge. This Court, without considering any of the other previous authorities of this Court, without giving any reasons whatsoever, did not follow the ratio laid down in Shah Babula/ Khimji's case. (262-G, HJ 1.3. Then in the case of New Kenilworth Hotel (P) Ltd., the question, H 190 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R. A whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo order was passed by the trial Court. In Appeal, a single Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babula/ Khimji (supra) and to the 2 Judge Bench decision in the case of B Resham Singh Pyara Singh (supra). Shah Babula/ Khimji's case being a 3 Judge Bench decision would prevail over Resham Singh Pyara Singh 's case. It was also a binding decision on this Bench yet surprisingly the Court followed Resham Singh Pyara Singh 's case. Of course the other decisions of
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