Mohinder Singh and ors. Vs. Indian Overseas Bank and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2,050 each, per month from november 1, 1987. the amount so payable by them for the months of november and december, 1987, shall be paid by december 24, 1987. in future, they shall pay the like amount every month by the 20th of the respective month.v.k. jhanji, j.1. in this petition under article 226 of the constitution of india, the petitioners are seeking a direction to the respondents to grant the petitioners the higher pay scale plus other allowances presently applicable to the security officers and security guards working with the respondent-bank on the principle of equal pay for equal work.2. having heard learned counsel for the parties, i am of the view that the writ petition is totally misconceived and deserves to be dismissed. petitioners nos. 1 to 3 were earlier in the employment of aecumeasures punjab limited as security officer and security guards respectively. the said company was ordered to be wound up under the orders of this court in company petition no. 35 of 1985. the official liquidator took possession of the properties of the company. as the official liquidator was notin possession of funds to meet the watch and ward charges for the security staff of the company, he filed company petition no. 114 of 1987, under the proviso to rule 292 read with rule 9 of the companies (court) rules, 1959, against the respondent-bank for a direction to the respondents who were secured creditors to advance adequate funds to the official, liquidator to enable him to meet the watch and ward charges to be made to the security staff and the amount so paid be treated as an advance to be recovered out of the assets of the company in priority to its debts. vide order dated december 17, 1987, passed in company petition no. 114 of 1987, d. v, sehgal j. (as he then was), directed respondents nos. 1 and 2 to pay rs. 2,050 each, per month to the official liquidator. the order in this regard may be noticed :'respondents nos. 1 and 2 are further directed to pay a sum of rs. 2,050 each, per month from november 1, 1987. the amount so payable by them for the months of november and december, 1987, shall be paid by december 24, 1987. in future, they shall pay the like amount every month by the 20th of the respective month. all the above amounts paid or to be paid by respondents nos. 1 and 2 shall be treated as advance which is ordered to be paid out of the assets of the company in priority to its debts. the petition is disposed of accordingly.'3. pursuant to the afore-mentioned order, the respondents have been advancing amounts to the official liquidator and the petitioners have been receiving the amount of their salary from the official liquidator. the petitioners were never employed by the respondent-hank, rather they were employees of the company to whom the banks had advanced huge loan. it was in pursuance of the orders of this court that the respondents advanced money to the official liquidator on behalf of the company to be paid as salary to these security guards. the amount so advanced is recoverable from the assets of the company in priority to its other debts, the petitioners have no legal right on the basis of which a direction can be issued to the respondents to pay them the salary which is payable to the other security officers/security guards of the bank. the other relief, as sought in the petition, for regularisation in service of the respondents too cannot be allowed as neither the petitioners are employees of the bank nor they were appointed or employed by the respondents or are performing the duties of the bank.4. accordingly, this petition shall stand dismissed. no costs.