i.T.C. Ltd. Vs. Bhatia Brothers and ors. - 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. s.s. sandhawalia, c.j.1. the very maintainability of these letters patent appeals nos. 337 and 336 of 1977 admitted to a hearing by the full bench on the 21st of sep., 1977, stands concluded against the appellants by the division bench judgment of this court in faqir chand v. the financial commr., punjab, 80 pun lr 357: (air 1978 punj & har 269).2. it is wholly unnecessary to advert to the facts in any great detail. it would suffice to mention that the respondents m/s. bhatia brothers and others preferred regular first appeal no. 907 of 1977 against the judgment and decree passed against them by the senior subordinate judge, ludhiana. therein c. m. no. 983 c-i of 1977 was moved by them under order 41, rule 5, c.p.c. praying that during the pendency of the appeal in the high court, the execution of the decree be stayed. the learned single judge by his order under appeal acceded to the prayer for stay on the condition that the respondents should furnish adequate security regarding the decretal amount to the satisfaction of the executing court within a period of one month. it was further directed that in case they fall to furnish the security, the stay order shall stand vacated.3. it is manifest that the order under appeal is merely a stay order on terms and conditions specified therein and involves no determination of any right or liability which may ultimately affect the merits of the controversy. that being so, the matter is obviously covered by faqir chand's case (air 1978 punj & har 269) (supra), wherein it has been categorically held that against such a stay order no letters patent appeal is competent.4. in passing it may be mentioned that no challenge or criticism was levelled against the ratio of faqir chand's case before us. equally it deserves recalling that the judgment therein was rendered subsequent to the admission of the present appeals. again it is the admitted position that the security has not been furnished by the judgment-debtors within the time prescribed and consequently the conditional stay granted by the order under appeal now stands vacated.5. following the decision in faqir chand's case (air 1978 punj & har 269)(supra), we dismiss these letters patent appeals whilst leaving the parties to bear their own costs.6. appeals dismissed.