Judgment:
U.L. Bhat, C.J.
1. This Letters Patent Appeal is directed against the dismissal of M.C.C. No. 634 of 1988. The Division Bench which heard the matter has referred the same to a Full Bench.
2. The first appellant's husband filed a civil suit seeking reliefs of declaration, permanent injunction regarding part of the suit property and possession regarding the remaining part of the suit property. The suit was dismissed. First appeal and second appeal were also dismissed. Thereupon the first appellant's husband filed an application under Order 47, Rule 1. C.P.C being M.C.C. No. 442/87. He died during the pendency of the application and the widow and daughter were impleaded as supplemental applicants. The learned single Judge dismissed the review application for default of appearance of the applicants and want of prosecution. Thereupon, they filed an application, M. C. C. No. 634/88 seeking to set aside the order of dismissal for default and seeking restoration of M. C. C. No. 442/87. The learned single Judge dismissed the application on merits holding that there was no sufficient cause to set aside the earlier order of dismissal. It is this order which is now challenged under Clause 10 of the Letters Patent.
3. Assuming that in view of the language of Clause 10 of the Letters Patent, an appeal may lie against an order of the nature sought to be challenged in this appeal, the question is what is the impact of Section 100A and Section 47 Rule 7 C.P.C. on the aspect of maintainability of the Letters Patent Appeal.
4. We will briefly refer to the decision placed before us. In L.P.A: No. 151/86, this Court held that an L.P.A. is not maintainable against an order dismissing an application to restore an application seeking review of the judgment disposing of the second appeal. The Court placed reliance on the decision of the Supreme Court in Shah Babulal Khiniji v. Jayaben, AIR 1981 SC 1786.
5. Learned counsel for the appellants has placed considerable reliance on the decision in Shanti Kumar R. Canji v. The Home Insurance Co. of New York, AIR 1974 SC 1719 which considered Clause 15 of the Bombay Letters Patent which is pari materia of Clause 10 of the Letters Patent of Nagpur High Court which governs the M. P. High Court. There was a suit filed on the original side of the Bombay High Court. An application seeking amendment of the plaint for incorporating a new relief which would have been barred by limitation on that date, was filed and allowed by the learned single Judge. Clause 15 of the Letters Patent permits L.P.A. against judgment of the single Judge. The Supreme Court held that if the order affects the merits of the action between the parties by determining some right or liability, Letters Patent Appeal may lie. It was further held that since the relief sought to be incorporated by a belated amendment was barred by limitation and since the amendment which was allowed related back to the date of suit, the defendant would have been deprived of the opportunity of taking the defence of limitation and, therefore, the order determined the right or liability of the parties and, therefore, the order amounts to a judgment and an appeal was permitted.
6. In Shah Babulal Khimji v. Jayaben, the Court held that although Letters Patent is a special law, certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a trial Judge to a larger Bench and the combined reading of Sections 4, 5, 104 and Order 49 Rule 3 of C.P.C. lead to the irresistible conclusion that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the trial Judge of the High Court and these provisions expressly authorise and create a forum for appeal against order falling under various clauses of Order 43, Rule 1 to a larger Bench without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. It was further held that even assuming that Order 43, Rule 1 C.P.C. does not apply to Letters Patent Appeals, the principles governing these provisions would apply by process of analogy.
7. In Bhanu Prakash Agrawal v. Roop-chand, AIR 1990 MP 198 : 1990 JLJ 501, after a learned single Judge disposed of a second appeal, one of the parties filed an application under Section 151 C.P.C. seeking an order of clarification of the judgment. The application was registered as Miscellaneous Civil Case. The learned single Judge dismissed the application but granted two weeks' time for delivering vacant possession by the unsuccessful party. Letters Patent Appeal was filed against this order. The Court held that by virtue of Section 100A C.P.C. a Letters Patent Appeal does not lie against the judgment and decree passed in second appeal and where the court exercised one class of jurisdiction in any given matter, the jurisdiction remains the same even in interlocutory matters or any other application disposed of after disposal of the case.
8. Reference is also made to a judgment of the Full Bench of this Court in Mahesh Chandra Choube v. M. M. Dube, AIR 1994 MP 151 : 1994 MPLJ 657. In that case, the trial court dismissed the application under Order 39 Rules 1 and 2 C.P.C. An appeal under Order 41 Rule l(r) C.P.C. was allowed by the learned single Judge. The unsuccessful party presented a Letters Patent Appeal and the Division Bench referred the question of maintainability of the appeal to a larger Bench, The Full Bench held that if a Single Judge of the High Court has passed an order exercising powers under Section 104 read with Order 43, Rule 1 C.P.C. in appeal, a further appeal under the Letters Patent is not maintainable.
9. Learned counsel for the appellant has referred to a decision of a Full Bench of the Andhra Pradesh High Court in Sattemma v. Vishnu Murthy, AIR 1964 AP 162. The Court held that the right derived from Clause 15 of the Letters Patent is not affected either by Order 47 Rule 7 C.P.C. or by Order 43 Rule 1 C.P.C. or any other provision of the Civil Procedure Code which restricts the right of appeal. We may at once notice that this decision was rendered before the incorporation of Section 100A in the C.P.C.
10. Where the matter arises in relation to the disposal of second appeal preferred under Section 100 C.P.C. Section 100A imposes a total ban against further appeal from the second appellate judgment of the single Judge. The provision contains non-obstante clause in relation to any Letters Patent for any High Court or any other instrument having the force of law or in any other law for the time being in force. Thus, the bar against a Letters Patent Appeal against a second appellate judgment is total and final.
11. Section 104 C.P.C. indicates the orders from which appeals lie and further indicates that appeals shall not lie from any other orders. Clause (i) takes in any order made under rules from which an appeal is expressly allowed by rules. Under Order 43, an appeal shall lie from the orders enumerated therein under the provisions of Section 104. Order 43, Rule l(w) prescribes an appeal against an order under Rule 4 of Order 47 granting an application for review. We may also examine the language used in Clause (c), (d) and (n) of Rule 1. The said clauses read as under:
'(c) an order under Rule 9 of Order IX rejecting an application in a case open to appeal) for an order to set aside the dismissal of a suit.'
'(d) an order under Rule 13 of Order IX
rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte.'
'(n) an order under Rule 2 of Order XXVrejecting an application (IN A CASE OPEN TOappeal) for an order to set aside the dismissalof a suit.'
Each of the above clause clearly indicates thatappeal will lie against the orders referred to inclauses (c) (d) and (n) only in cases 'open toappeal'. The scheme of Rule 1 is to provideright of appeal in so far as the above clausesare concerned only against appeals where themain case itself is open to appeal. Such areservation is superfluous in regard to theother clauses.
12. In the light of the above provisions, we shall now examine the provisions of Order 47 C.P.C. Rule 1 provides for application for review of judgment. Rule 4 indicates when the application can be rejected or granted. Rule 7 deals with the question as to when the order of rejection is not appealable and objections to order granting application. Rule 7 reads as under:-
'7. Order of rejecting not appealable. Objections to order granting application.
(1) An order of the Court rejecting the application shall not be appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same,
3. No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.'
It is crystal clear that an order rejecting a review application is appealable. Where the rejection of a review application is on default, remedy provided is to apply to have the review application restored to file as provided in sub-clause (2). Along with Clause (1) of Rule 7, we may also read Order 43 Rule (l)(w) which provides that an appeal shall lie from an order under Rule 4 of Order 47 granting an application for review.
13. From the examination of the above provisions, it is sufficient to show that where a review application is allowed, an appeal lies but where it is dismissed, an appeal does not He. Rejection of the review application on merits and rejection for default are treated diferently under Rule 7 of Order 47. There cannot be an appeal against rejection of a review application on merits or on default, but in the latter case the party has a remedy by filing an application for restoration of the review application. Otherwise, the remedy would be only to challenge the judgment or order originally passed. In the present case, the remedy would be to challenge the judgment dismissing the second appeal in the manner provided by law.
14. The order dismissing the application for restoration of the review application may affect the rights of the parties, or at any rate, the rights of the applicant and in that view, is capable of being regarded as a judgment. That by itself is not sufficient to render the order appealable. The impact on Clause 10 of the Letters Patent of Section 100A and Order 47 Rule 7(1) also requires examination. The effect of Section 100A is to deny remedy by way of appeal against the judgment disposing of a second appeal. The effect of Order 47 Rule 7(1) would deny a right of appeal to a applicant whose application for reviewing the second appellate judgment is dismissed. If against a main order ifself no appeal could be filed, it cannot be that an appeal would lie against a subsequent order which also seeks merely to upset the original judgment. What a litigant cannot secure directly cannot be permitted to be secured indirectly. We are inclined to agree with the view taken in Bhanu Prakash Agrawal v. Roopchand, AIR 1990 MP 198: 1990 JLJ 501. The decision of the Supreme Court in Shanti Kumar's case, AIR 1974 SC 1719 relied on by the appellant does not militate against the view taken by us. With respect, we are unable to agree with the view taken by the Andhra Pradesh High Court in Sattemma's case, AIR 1964 AP 162. The view taken by us is fully consistent with the principles laid down by the Supreme Court in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786. We, therefore, hold that the L.P. A. is not maintainable. It is accordingly dismissed but without costs.