SHAH BABULAL KHIMJI versus JAYABEN D. KANIA AND ANR.

Citation: [1982] 1 S.C.R. 187 · Decided: 10-08-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

-
-
• 
• 
"--. 
SHAH BABULAL fKHIMJI 
v. 
JAYABEN D. KANIA AND ANR. 
August JO, 1981 
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND 
AMARENDRA NATH SEN, JJ] 
187 
Code of Civil Procedure, 1908-Section 104 Order 43 Rule I-Scope of-
Letters Patent-Clause 15-Right of Appeal under chruse 15--Jf affected by sec· 
lion 104,'_0rder 43 Rule 1. 
In a suit for specific performance of an agreement to sell filed on the original 
side of the Bombay High Court the plaintiff (appellant) prayed for certain 
interim reliefs. A single Judge of the High Court dismissed the application. A 
Division Bench of the High Court, on appeal by the plaintiff, held that the 
appeal was not maintainable on the ground that the impugned order of the 
single Judge was not a 'juGgment' within the meaning of clause 15 of the Letters 
Patent of the High Court. 
In appeal to this Court it was contended on be:half of the appellant that 
since the trial Judge is governed by the procedure prescribed by the Code of 
Civil Procedure, by virtue of the provisions of section 104 read with Order 43 
Rule (I) the impugned order is appealable to a larger Bench; (2) assuming that 
the Letters Patent was a special law, section 104 re~ad with Order 43 is in no 
way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read 
with Order 43 Rule l does not apply an order refusing to appoint a receiver or 
to grant injunction has the attributes of finality and, therefore, amounts to a 
'"judgment' within the meaning of Letters Patent. 
Allowing the appeal 
HELD: 
(per Fazal Ali and A. Varadarajan, JJ.) 
A 
B 
c 
D 
E 
F 
(Amarendra Nath Sen, J. concurring.) 
G 
Since the Order of the trial Judge was one refusing appointment of a 
receiver and grant of ad-interim injunction, it is a 'judgment' within the meaning 
of the Letters Patent both because order '3 rule 1 applies to internal appeals in 
the High Court, and such an order even on merits contains the quality of fina-
lity and would be a judgment within the meaning of clause 15 of Letters Patent. 
H 
Hence an appeal is maintainable to the Division Bench. The Division Bench 
was in error in dismissing the appeal without deciding it on merits. (259 F-G] 
188 
SUPREME COURT REPORTS 
[1982] I S.C.R, 
A 
There is no inconsistency between section 104 read with Order 43 Rule l, 
B 
c 
D 
E 
F 
G 
H 
C.P.C. and appeals under Letters Patent. There is nothing to show that Letters 
Patent in any way excludes or overrides the application of section 104 read with 
Order 43 Rule 1 or that these provisions do not apply to internal appeals within 
the High Court. [237 E-F] 
Code of Civil Procedure 1877, by sections 588 and 589, did not make any 
distinction between appeals to the High Court from the District Court and 
internal appeals to the High Court under Letters Patent. Notwithstanding the 
clear enunciation of law by the Privy Council that section 588 did not affect nor 
was it inconsistent with the provisions of Letters Patent and that, therefore, 
orders of a trial Judge which falt beyond section 588 could be appealable to a 
larger bench under the Letters Patent if its orders amounted to a 'judgment' 
within the meaning of clause 15 of the Letters Patent, there was a serious 
controversy among the High Courts on this question. Section 104 of the C.P.C., 
1908 made it clear that appeals against orders mentioned in Order 43 Rule l 
were not in any way inconsistent with the Letters Patent but merely provide 
additional remedy by allowing appeals against miscellaneous orders passed by 
the trial Judge to a larger bench. (205 E-G] 
In dealing with a suit the trial Judge has to follow the procedure prescribed 
by the Code. It is indisputable that any final judgment passed by the trial Judge 
amounts to a decree and under the provisions of the Letters Patent an appeal 
lies to a larger bench. Letters Patent itself does not define the term 'judgment' 
and has advisedly not used the word 'decree' in respect of a judgment given by 
the trial Judge. [205 B·D] 
Section 5 of the Code empowers the State Govrnment to apply the provisions 
of the Code where any enactment is silent as to its applicability. Section 5 makes 
clear that, excepting the Revenue Courts, all other Civil Courts would normally 
be governed by the provisions of th~ Coje in the matter of procedure.[206H 1207Al 
Section 4 of the Code which provides that in the absence of any specific 
provision to the contrary the provisions of the Code do not limit or a

Excerpt shown. Read the full judgment & AI analysis in Lexace.