John Beaumont, Kt., C.J.
1. This is a petition for leave to appeal to the Privy Council in rather peculiar circumstances.
2. An application was made under Section 33 of the Indian Arbitration Act, 1940, challenging the validity of an arbitration agreement, which application was dismissed by Mr. Justice Kania sitting on the Original Side of this High Court. An appeal was brought from his order, but having regard to the provisions of Section 39 of the Indian Arbitration Act, which directs that an appeal shall lie from the orders passed under certain sections of the Act (and from no others), and having regard to the fact that Section 33 is not one of the sections mentioned in Section 39, this Court held that it had no jurisdiction to entertain the appeal. But under Sub-clause (2) of Section 39 it is provided :
Nothing in this section shall affect or take away any right to appeal to His Majesty in Council.
That proviso saves any existing right of appeal to His Majesty in Council, but clearly does not create a new right. Therefore, one has to see whether there is any existing right to appeal to His Majesty in Council.
3. Under Clause 39 of the Letters Patent an appeal lies from a decree or order made in the exercise of original jurisdiction by Judges of a Chartered High Court, but under Clause 44 the provisions of the Letters Patent are subject to the legislative powers of the Indian Central Legislature. So one has to turn to the Civil Procedure Code to see whether this right of appeal is in any way affected. Section 109(b), Civil Procedure Code, so far as material, provides that an appeal shall lie to His Majesty in Council from any decree or final order passed by a High Court in the exercise of original civil jurisdiction. So that, under that section an appeal would seem to lie to the Privy Council from an order of a single Judge. But then Section 111 provides that, notwithstanding anything contained in Section 109, no appeal shall lie to His Majesty in Council from the decree or order of one Judge of a High Court established under the Indian High Courts Act, 1861. It has been held that Section 111 prevents an appeal to His Majesty in Council from decrees or orders of a single Judge sitting; in second appeal (see Sadar Ali v. Dalimuddin I.L.R. (1928) Cal. 512 or of a single Judge sitting in revision (see Satymctrayana Vamprasada v. Venkata Bhashyakarla I.L.R. (1923) Mad. 958). Those cases have been followed in this Court in Hanmant v. Shriniwas : (1931)33BOMLR1106
4. It is argued that Section 111, Civil Procedure Code, if construed to destroy the right of appeal from a decree or order of a single Judge exercising original jurisdiction, would virtually override Section 109(6) of the Civil Procedure Code. No doubt; to a great extent it would destroy the effect of Section 109(b), but that sub-section is not eliminated, because a special bench may be constituted of more than one Judge to hear an Original Side matter. I have myself on several occasions constituted a bench of two or more Judges to hear an original matter, where the point arising was merely one of law, and no evidence was necessary, the object being to obviate two hearings in this Court. So that, it cannot be said that Section 111 entirely abrogates Section 109(b)-It seems tome impossible to escape from the perfectly plain words of Section 111, which provide that no appeal shall lie to His Majesty in Council from the decree or order of one Judge of a High Court. What we are asked to do is to give leave to appeal from an order of a single Judge of this High Court.
5. The application must be rejected with costs.
Sen, J.
6. I agree.