LexSUBAL PAUL versus MALINA PAUL AND ANR.
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A SUBAL PAUL v. '( MALINA PAUL AND ANR. FEBRUARY 13, 2003 B [V.N. KHARE, CJ., S.8. SINHA AND DR. A.R. LAKSHMANAN, JJ.] + Letters Patent (Calcutta High Court): c Clause I 5-0rder passed by Single Judge of High Court in appeal ul s.299 of Indian Succession Act-Letters Patent Appeal filed before .Division Bench-Objection as regards maintainability of letters patent appeal overruled by High Court-Held, order passed by Single Judge in appeal u!s.299 was appealable to Letters Patent Bench and the objection with regard to maintainability of appeal was rightZv overruled by High Court-Clause I 5 of D the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded-Clause I 5 may be subject to an Act but when it is not so subject to the special provision, the power and jurisdiction of the High Court under Clause I 5 to entertain any appeal jiw11 a judgment would be effective-Clause I 5 of the Letters Patent E permits an appeal against the order passed by a Single Judge of the High Court in the second forum-Indian Succession Act, 1925-s.299. Sharda Devi v. State of Bihar, (2002) 3 SCC 705; Shah Babula/ Khimji v. Javaben D. Kania and_Anr., ( 19811 4 SCC 8; National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd., AIR (1953) SC 357; F Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt. ltd. and Ors., [1991) 2 SCC 637 and Prataprai N. Kothari v. John Braganza, [1999) 4 SCC 403 relied on. Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Ors., AIR (1988) SC 915 - (198812SCR1043; Mis. Tanus1ee G Art Printers and Anr. v. Rabindra Nath Pal, (2000) 2 CHN 213 and (2000) 2 CHN 843; Union of India and Ors. v. Aradhana Trading Co. and Ors., [2002) 4 SCC 447; Chandra Kanta Sinha v. Oriental Insurance Co.Ltd. and Ors., [2001 J 6 SCC 158 and .Municipal Corporation of Brihanmumbai and + Anr. v. State Bank of India, [1999) 1 SCC 123 referred to. H 1092 SUBAL PAUL v. MALINA PAUL 1093 Ba/want v. Mainabai; AIR (1991) Madhya Pradesh 11; Jyotirindra A Nath Chowdhury v. Pratima Rani Debi; I LR (1967) 1 Cal. 278, distinguished. New Kenihrorth Hotel (P) ltd. v. Orissa State Finance Corporation and Ors., 119971 3 SCC 462 and Balai Lall Bane1jee and Ors. v. Debaki Kumar Ganguly and Ors., AIR 1984 Cal.16 held inapplicable. Indian Succession Ac/, 1925 S.299-0rder passed under-Nature of-Will-Son of testator applying B for probate-Additional District Judge rejecting the prayer-Appeal uls.299 before Single Judge of High Court allowed-letters Paten/ appeal held maintainable by Division Bench of High Court-Held, a final order passed C under s.299 adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable may not be stricto sensu a decree within the meaning ofs.2(2) CPC, but is a judgment within the meaning of s.2(9) thereof-While determining the question as regards clause 15 of letters )'Jatent, the Court is required to see as to whether or not the order D sought to be appealed against is a judgment within the meaning thereof- Once it is found that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, clause 15 of letters Patent would be attracted-S.299 expressly provides for an appeal to High Court-The right of appeal, therefore, is not conferred uls.104 Cl'C- The words "save as expressly provided by any other Act" were inserted in the E said provision in 1908 having regard lo difference of opinion rendered in the judgments of various High Courts as regards the applicability of letters palent, and to give effect to the Calcutta, Madras and Bombay High Courts' decisions- S. l 04 CPC does not contemplate orders or decree passed under a special statute-The words "in accordance with the provisions of the Code of Civil F Procedl!re, 1908" occurring in s.299 of Succession Act do not refer to any substantive rights of the parties but merely procedural part-A righl of appeal of a party in a contentious proceedings is, therefore, to be found in the provisions of s.299 of the Act itself and not in s.104 of the Code of Civil Procedure-Code of Civil Procedure, 1908-S.104-letters Patent (Calcutta High Court)-Clause 15. G Miss Eva Mozmtstephens v. Mr. Hunter Garnett Orme, ILR (1913) 35 All.448; G.S. Nayyar v. Smt. Kaushalya Rani and Ors.,
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