TMI Blog2003 (2) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. Aggrieved, the appellant preferred an appeal under Section 299 of the Act before the Gauhati High Court. A learned Single Judge of the High Court allowed the appeal and granted letters of administration with a copy of the Will annexed thereto. Aggrieved, the respondents preferred a letters patent appeal before a Bench of the High Court. Before the said Bench, the appellant herein raised a preliminary objection that no such appeal is maintainable being barred by Section 104 of the Code of Civil Procedure, 1908. The Bench overruled the objection and directed for hearing of the appeal. It is at this stage the appellant herein filed the present appeal by special leave and by virtue of the interim order passed by this Court the hearing in the letters patent appeal was stayed. Mr. Sanjay Parikh. learned counsel appearing for the appellant reiterated the arguments raised before the High Court. Mr. Parikh submitted that an appeal to the High Court in terms of Section 299 of the Act would be governed by Section 104 of the Code of Civil Procedure. According to the learned counsel, as an order passed by the District Judge in a contentious proceeding is not a decree within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated therein have been specified in the said provision. Section 278 of the Act similarly provides for the manner in which an application for grant of letters of administration is to be filed. Sub- section (1) (c) of Section 283 empowers the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceeding after issuance thereof. Section 284 of the Act provides for lodging of caveats. Once a caveat is lodged, the proceeding becomes contentious. Section 295 of the Act Provides for procedure in contentious matters whereas Section 299 provides for an appeal from the orders passed by the District Judge in the proceedings. Sections 295 and 296 read thus: 295. Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be the form of a regular suit, according to the povisions of the Code of the Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 299.- App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders: (ff) an order under Section 35A: (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95: (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree: (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of less amount, ought to have been made.'' It is not disputed that Section 299 of the Act expressly provides for an appeal to the High Court. The right of appeal, therefore, is not conferred under Section 104 of the Code of Civil Procedure. The words save as expressly provided by any other Act were inserted in the said provisions in 1908 having regard to difference of opinions rendered in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a bar. it is so expressly stated as would appear from Section 100A of the Code of Civil Procedure. If a right of appeal is provided for under the Act. the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal, in absence of any provision in a statute cannot be readily inferred. It is now well-settled that the appellate jurisdiction of a superior court is not taken as excluded simply because subordinate court exercises its special jurisdiction. In G.P. Singh's 'Principles of Statutory Interpretation', it is stated: The appellate and revisional jurisdiction of superior courts is not taken as excluded simply because the subordinate court exercises a special jurisdiction. The reason is that when a special Act on matters governed by that Act confers a jurisdiction to an established court, as distinguished from a persona designate, without any words of limitation, then, the ordinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted... But an exception to the aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld show that different views have been taken on various aspects of the matter, namely, as regards the nature of the order passed, the procedure to be adopted, applicability of letters patent of the High Court, amount of court fee payable on a Memo of Appeal etc. Despite the fact that Section 299 of the Act states that all orders shall be appealable, attention of the High Courts was engaged in laying down the law as to whether even an interlocutory order would be appealable or not and/or the extent of jurisdiction of the appellate court in relation thereto or the procedure applicable therefor . The orders passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be, stricto sensu a decree within the meaning of Section 2(2) of the Code of Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nath Pal, [2000] 2 CHN 213 and 2000 (2) CHN 843. It was pointed out: If the right of appeal is a creature of a statute, the same would be governed by the said statute. Whether an appeal under Clause 15 of the Letters patent will be maintainable or not when the matter is governed by a Special Statue will also have to be judged from the scheme thereof, (e.g. despite absence of bar, a Letters Patent appeal will not be maintainable from a judgement of the learned Single Judge rendered under the Representation of People Act.) It was pointed out that in Shah Babulal Khimji's case (supra ) this Court posed three questions namely: (1) Whether in view of clause 15 of the Letters Patent an appeal under section 104 of the Code of Civil Procedure would lie? 2) Whether clause 15 of the Letters Patent supersedes Order 43 Rule 1 of the code of Civil Procedure? 3) Even section 104 of the CPC has no application, whether an order refusing to grant injunction or appoint a receiver would be a judgment within the meaning of Clause 15 of the Letters Patent? The Apex Court answered each of them from a different angle: (a) Section 104 of the Code of Civil Procedure read with Order 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided. Thus Clause 15 permits an appeal against the order passed by a Single Judge of the High Court in the second forum. This Court in National Sewing Thread Co. Ltd Chidambaram v. James Chadwick and Bros Ltd. AIR (1953) SC 357 held that as regards a judgment passed by a Single Judge of High Court exercising ifs power under Section 76 of the Trade Marks Act, a Letters Patent Appeal would be maintainable. The said decision has been followed by this Court in Maharashtra State Financial Corporation v. Joycee Drags and Pharmaceuticals Pvt, Ltd and On., [1991] 2 SCC 637, In Union of India and Ors, v. Aradhana Trading Co. and Ors, [2002] 4 SCC 447, this Court while referring to National Sewing Thread Co. 's case (supra), distinguished the same on the ground that under the Arbitration Act, there exists a specific provision relating to an appeal in New Kenilworth Hotel (P) Ltd (supra), this Court dealt with an order passed by a Single Judge of the High Court in an appeal from or under Order 39, Rule 1 Code of Civil Procedure, in that case, Section 104 of the Code of Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the learned counsel, it becomes clear that the appellate jurisdiction mentioned therein refers to a second appeal under Section 100 CPC (or under any provision of a special Act) which is in respect of a decree or order made in exercise of appellate jurisdiction in the first appeal, filed under Section 96 CPC (or under any provision of a special Act) by a court subject to the superintendence of the High Court. In other words, from a judgment passed by one Judge in second appeal, under Section 100 CPC or any other provision of a special Act no letters patent appeal will lie to the High Court provided the second appeal was against a decree or order of a District judge or a Subordinate Judge or any other Judge subject to the superintendence of the High Court passed in a. first appeal under Section 96 CPC or any other provision of a special Act. It was further held: In New Kenilworth Hotel (P) Ltd. case aggrieved by the order of the trial court passed under Order 39 Rules (1) and (2), an appeal under Section 104(1) CPC read with Order 43 Rule l(r) was filed before the High Court which was disposed of by one Judge of the High Court. From the order/judgment of one Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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