ORDER
T.N. Singh, J.
1. By this order, we propose to dispose of M.C.C. No. 31 of 1990 and the connected Letters Patent Appeal No. 28 of 1987 because we heard counsel in both matters treating the two matters analogous.
2. The two matters arise out of First Appeal No. 54 of 1978, disposed of on 26-6-1984. That appeal was admitted on 25-7-1979 and was listed on several dates for hearing. Finally, on 26-6-1984, finding the appellant’s counsel absent, the appeal was dismissed for default in appearance. That order was passed by U. N. Bhachawat, J. and K. M. Agrawal, J., constituting the Division Bench which had heard the appeal. Surprisingly, however, an application was filed before a learned Single Judge of this Court in M.C.C. No. 151 of 1987 and that was heard and disposed of on 10-10-1987. The application was made under Order 41, Rule 19, Civil Procedure Code for restoration of the appeal and for hearing the same on merit. R. C. Shrivastava, J., who heard the matter, took the view that sufficient cause had not been made out for restoration and that it was a case of gross negligence on the part of the counsel and the slip was inexcusable. It was contended before him that Shri D. K. Kothari, learned counsel, appearing for the appellant/applicant, failed to notice the appeal in the cause-list due to accidental slip.
3. Against that order, passed by the learned Single Judge, Letters Patent Appeal No. 28 of 1987 was lodged in this Court on 28-11-1987. When it was listed for admission, the question of maintainability was raised on behalf of the respondent and on that question, counsel were required to address the Court. For that, the appeal was listed on 22-11-1988, 24-11-1988, 3-10-1989, 2-11-1989, 22-11-1989 and finally on 19-1-1990, we recorded the order that on several dates, the matter was adjourned to allow counsel opportunity to place the law, but the appellant’s counsel being not ready with the law, it was held that the appellant apparently had lost interest in pursuing the appeal. The appeal was dismissed for non-prosecution. Against that order, the instant Misc. Civil Case No. 31 of 1990, was lodged on 22-1-1990 and in this matter, again on several dates, the question of maintainability was raised of both matters, the appeal and the M.C.C. and finally, hearing was concluded on 8-4-1992.
4. The moot question indeed is if the order passed by R. C. Shrivastava, J. on 10-10-1987 in M.C.C. No. 151 of 1987 is an order passed under terms of section 104, Civil Procedure Code. On that question, Shri Jain, learned counsel appearing for the appellant/applicant, has addressed us at length submitting that the said order was appealable in terms of Order 043, Rule 1(t), Civil Procedure Code. Apparently, the crucial question is if that order is validly passed in terms of the provisions of Rule 19 of Order 41, Civil Procedure Code so as to be appealable under Clause 10 of the Letters Patent As per Rule 17, Order 41, it appears clear to us, the “Court” in seisin of the appeal makes the order dismissing the appeal if the appellant does not appear when the appeal is called on for hearing. We have no doubt that Rule 19 which speaks of the “appellate Court” refers to the same “Court” which had seisin of the matter and had passed the order. If the “Court” was constituted with one Judge, the application under Rule 19 of Order 41 is to be heard and decided by him and when the first order was passed by “Court” consisting of two Judges, that “Court” can only have jurisdiction to hear and dispose of the application made under Rule 19. Support for this view, we also find in Rule 5 of Order 47 and that provision has signal relevance to the controversy because the application made under Order 41, Rule 19 is of same nature as an application made for review. It is true that U. N. Bhachawat, J. had demitted office in the meantime, but K. M. Agrawal, J. still continues to be a Judge of this Court. For hearing and disposal of the application under Rule 19, Order 41, a Division Bench with K. M. Agrawal, J. and another Judge of this Court was only competent and another Single Judge of this Court could not be deemed to be “appellate Court” for disposing of the said application. We have no doubt, therefore, that the order which R. C. Shrivastava, J. passed on 10-10-1987 in M.C.C. No. 131 of 1987 being without jurisdiction was nullity; and that is to be ignored.
5. Having reached at that conclusion, we have to see if the order passed by the Division Bench of U. N. Bhachawat, J. and K. M. Agrawal, J., dismissing for non-prosecution on 26-6-1984 First Appeal No. 84 of 1978 is appealable under Clause 10 of Letters Patent. To that question, there is a short answer. It is only a judgment passed by a learned Single Judge of the High Court, whether in original or appellate jurisdiction, against which an appeal can be heard by two Judges of the same Court. The provision in that regard is very clear. We have, therefore, no hesitation to hold that the order passed by us dismissing for non-prosecution the Letters Patent Appeal on 19-1-1990 was a valid and legal order and that is not liable to be challenged in the instant M.C.C. No. 31 of 1990. Accordingly, in our view, there is no substance in L.P.A. No. 28 of 1987 as also M.C.C. No. 31 of 1990. We may recall in this context the well-known legal adage — what cannot be done directly, cannot also be done indirectly. By interposition of an order of a learned Single Judge, desegnadly obtained, our Letters Patent jurisdiction cannot be invoked. It is as clear as day-light that the order passed by the Division Bench consisting of U. N. Bhachawat, J. and K. M. Agrawal, J. could not be assailed in Letters Patent Appeal and recourse was, therefore, taken to a misconceived and designed proceeding before a learned Single Judge with the object of assailing his order in Letters Patent Appeal.
6. We would, however, be failing to discharge our constitutional duty if we do not refer to the decisions cited by Shri Jain in support of his contention. Shah Babulal Khimji, AIR 1981 SC 1786 lays down that there is no inconsistency between section 104 read with Order 43, Rule 1 and appeals under Letters Patent. In that case, a learned Single Judge was trying a suit as original Court on the Original Side for specific performance of contract. His prayer for interim relief by appointing a Receiver and for injunction during pendency of the suit was dismissed by the learned Single Judge and an appeal against that order was preferred before Division Bench. That appeal was held maintainable. In the instant case, as we have discussed above, the facts are entirely different in that we have held the order passed by the learned Single Judge to be nullity and we have held the Letters Patent Appeal not to be maintainable because the appeal is to be heard against judgment not of a Single Judge, but passed by the Division Bench consisting of two learned Judges of the Court.
7. Counsel’s reliance on Maganlal v. Jaiswal Industries, (1989) 4 SCC 344, is obviously misconceived It is held in that case that once a matter reaches a particular Court, it is to be decided in accordance with the rules of practice and procedure of that Court. Nothing has been pointed out to us from the rules of this Court or even from the Civil Procedure Code that a learned Single Judge could hear and decide an application under Order 41, Rule 19 in respect of an order passed by Division Bench and also in respect of maintainability of a Letters Patent Appeal against any order or judgment passed by Division Bench. National Sewing Thread Co.’s case, AIR 1953 SC 357 is also not of any help to Shri Jain because the only question decided in that case was that a decision of a learned Single Judge of the High Court in Appeal preferred under section 76, Trade Marks Act constituted judgment within the meaning of the term employed in Clause 15 of Letters Patent of Bombay High Court.
8. To a decision of this Court in Shrichand, 1979 MPLJ 170 = 1979 JLJ 180, our attention is also invited. The term “judgment” used in Clause 10 of Letters Patent of Nagpur High Court (predecessor of this Court) is construed in that case in the context of an ex parte decree which had been set aside by the learned Single Judge. The question that arose in that case was entirely a different one dealing obviously with the power of this Court in hearing an appeal under Order 43, Rule 1(d), Civil Procedure Code which question does not arise in this case. In Ramaswamy Reddiar, AIR 1976 Mad. 63. what was under consideration of the Court was an order passed by the Court below under Rule 19 of Order 41, Civil Procedure Code and it was held that the said order was appealable under Order 43, Rule l(d), Civil Procedure Code. Although Shri Jain has referred also to a decision reported in 1948 NLJ 365 = AIR 1949 Nag. 118, relevance of that decision being nil to the controversy, we do not propose to deal therewith; it appears to us to be a case of wrong citation.
9. In the result, M.C.C. No. 31 of 1990 and Letters Patent Appeal No. 28 of 1987 are both dismissed. There shall be no order as to costs.