ORDER
P. Ramakrishnam Raju, J.
1. The only question that arises for consideration is, whether an appeal lies to a Division Bench against an order made by a single Judge on an interlocutory application in a second appeal?
2. The two-fold contentions advanced before us are:
(1) Right of appeal being a statutory right cannot be rendered nugatory by a narrow interpretation of the statutory provisions in respect of appellate jurisdiction; and
(2) An order made in an interlocutory application in a second appeal is not an order passed in exercise of the appellate jurisdiction but one made in exercise of the original jurisdiction and therefore, an appeal is maintainable to a Bench of two Judges.
3. Before we answer this question, it is relevant to notice a few facts which led to the filing of the above Letters Patent Appeal.
4. The appellant filed S.A. 388/91 questioning the decree and Judgment passed by the Additional Chief Judge, City Civil Court, at Secunderabad in A.S.263/87, reversing the decree in O.S.1230/80 on the file of the III Additional Judge, City Civil Court, at Secunderabad, filed by the respondent herein, against the appellant and some others for recovery of possession of premises bearing No. 2-3-465 of Ramgopalpet, Secunderabad, together with profits. Along with the second appeal, the appellant also filed C.M.P.9453/91 and obtained interim stay of execution of the decree on 14-11-1991. Thereupon, the respondent moved this Court in C.M.P.3926/92 to vacate the said stay granted on 14-11-1991 and both these petitions were disposed of by a common order by a single Judge on 13-4-1992, whereunder, interim stay was made absolute, but subject to condition that the appellant deposits a sum of Rs. 65,000/- towards past mesne profits and damages within three months from the date of the order. The said period has expired by 13-7-1992. The appellant again moved this Court for extension of time by four months by filing C.M.P.10260/92. The said application came up before our learned brother Justice Jagannadha Raju on 25-1-1993 and the learned Judge dismissed the same, stating that not only the time granted originally under order dated 13-4-1992, but also the extension of time by four months, as sought for, had also expired by 13-11-1992 and in spite of the same, the appellant had not complied with the said order even by 25-1-1993, the date of hearing of the petition for extension of time. It is this order that is the subject-matter of this Letters Patent Appeal.
5. Now let us have a look at Clause 15 of the Letters Patent, which reads as follows:-
“Clause 15:- Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction:-
And we do further ordain that an appeal shall lie to the said High Court of judicature at (Madras), (Bombay), (Fort William in Bengal) from the judgment not being a jugment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of the Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the cause is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or such Division Court shall be to us, our heirs or successors in our or Their Privy Council, as hereinafter provided.”
6. Section 108 of the Government of India Act referred to in Clause 15 of the Letters Patent relates to exercise of jurisdiction by single Judges or Division Courts. It says that each High Court may make rules for the exercise of jurisdiction by Judges sitting singly or in Division Courts in regard to original and appellate jurisdiction vested in the Court. The Chief Justice of each High Court shall determine what Judge in each case should sit singly; what Judges are to constitute Division Courts. Section 107 confers powers on High Courts to exercise superintendence and control over subordinate Courts. In Umaji v. Radhikabai, ., it was held that the reference to Section 107 of the Government of India Act in Clause 15 of the Letters Patent “must necessarily be read as a reference to Article 227 of the Constitution”, which confers power of superintendence on the High Court over all Courts and tribunals in the State in respect of which the High Court is constituted.
7. A right of appeal is provided from the judgment of one Judge of the High Court in all matters other than the following:
(1) Judgment rendered by a single judge exerdsing appellate jurisdiction in respect of appellate decrees or orders made by a subordinate Court exercising appellate jurisdiction.
(2) An order made by a single Judge exercising revisional jurisdiction.
(3) A sentence or an order passed in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or a sentence or an order passed in exercise of criminal jurisdiction.
8. A Division Bench of this Court in Pragathi Enterprises v. Balaji Trading Co. ., has expressed the opinion:
“It is one of the basic principles of law that if an appeal does not lie against the main judgment, an appeal will not equally lie against any order which arises out of the said judgment-whether such order is interlocutory in nature or such an order is one passed in review of the same judgment.”
The question that fell for consideration was, whether a L.P. Appeal lay against an order of a single Judge of this Court refusing to review the Judgment in a revision petition. Although the power of review is an independent power, unrelated to the power of revision, the Division Bench nonetheless held that an appeal did not lay.
9. The latter limb of Clause 15 of Letters Patent carves out an exception in respect of the first category of exclued matters by providing:
“If the Judge who passed the Judgment declares that the case is a fit one for appeal.”
Notwithstanding the provisions of the Letters Patent or any Law for the time being in force, Section 100-A of the Civil Procedure Code, which was inserted by C.P.C. Amendment Act, 1976 categorically excludes further appeals from an appellate decree or order made by a single Judge of a High Court. Section 104 of the C.P.C. read with Order 43, Rule 1 enumerates what are appealable orders. Sub-section (2) says that no appeal shall lie from any order passed in an appeal under Section 104.
10. It is well settled that the right of appeal is a statutory right. As observed by A.N. Sen, J. in his separate but concurring opinion in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786.
“An appeal, it has to be remembered, is a creature of statute and the litigant does not have a right of appeal against any decision of a competent Court unless a right of appeal has been specifically conferred on the litigant by law.”
11. Clause 15 of the Letters Patent confers on the litigant the right to prefer an appeal against any judgment. Any order, which is considered to be a Judgment, will be appealable by virtue of the provisions contained in Clause 15 of the Letters Patent. Adverting to the scope of Section 104 vis-a-vis the provisions of Clause 15 of the Letters Patent, the learned judge observed:
“The right of appeal under Clause 15 of the Letters Patent is in no way curtailed or affected by Section 104 of the Code of Civil Procedure and Section 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein. In other words, by virtue of the provisions contained in Section 104(1), a litigant enjoys the right of preferring an appeal in respect of Various orders mentioned therein, even though such orders may or may not be appealable under Clause 15 of the Letters Patent as a Judgment and the right of appeal under Clause 15 of the Letters Patent remains clearly unimpaired”.
12. Therefore, the first aspect to be considered is, whether the order passed by the learned single Judge refusing to extend time for depositing money is a ‘Judgment’ within the meaning of Clause 15 of the Letters Patent.
13. The Supreme Court in Shanti Kumar v. H. Insurance Co., New York, . referring to an earlier decision in Asrumati Devi v. Rupendra Deb, ., held-
“A judgment within the meaning of Clause 15 of the Letters patent must satisfy two tests;
First, the judgment must be the final pronouncement which puts an end to the proceedings as far as the Court dealing with it is concerned;
Second, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on merits.”
14. Applying that test, it is not possible to hold that the interlocutory order in question is a “judgment” within the meaning of Clause 15 of the Letters Patent. It is not a final pronouncement terminating the final proceedings in the second appeal so far as this Court is concerned. Secondly, it does not involve the determination of any right or liability. If it is not a “judgment” under Clause 15 of the Letters Patent, the appellant is not entitled to rely upon that clause in assertion of his right of appeal.
15. Even if it is to be assumed, for the sake of argument, that it is a ‘judgment’ still, it is not appealable. It falls directly within the inhibition of the first category of excluded matters referred to above. The learned single Judge had seisin of the matter not in exercise of original jurisdiction, but undoubtedly, in the exercise of appellate jurisdiction in the second appeal. Had there been no second appeal pending in this court the learned single judge would not have passed the order in question. Merely because an interlocutory application was filed in the Registry in a pending second appeal, the adjudication of the interlocutory application cannot be traced to the original jurisdiction of this Court. It is necessarily inter-linked inextricably with the appellate jurisdiction in the second appeal.
16. The impugned order made by the learned single Judge does not fall within the ambit of Section 104(1) C.P.C. read with Order 43, Rule 1. When Clause 15 of the Letters Patent is not attracted and when the case does not fall within the ambit of Section 104 read with Order 43, Rule 1 of Civil Procedure Code, there is no other statutory provision under which the appellant’s right to prefer an appeal to the Division Bench can be located. In other words, there is no statutory provision specifically conferring the right of appeal on the appellant. Reliance placed by the learned counsel for the appellant upon Section 100-A C.P.C. is totally misconceived. Section 100-A only forbids further appeals in certain cases. It does not affirmatively confer any right of appeal.
17. From the language of Section 100-A C.P.C. it is clear that even if a right of appeal is conferred by the Letters Patent or any other law for the time being in force, still there shall be no appeal from the judgment, decision or order of a single Judge which was made “in an appeal from an appellate decree or appellate order”. The words “appellate decree or order” in Section 100-AC.P.C. must be read as ‘appellate decree or ‘appellate order’. The adjective “appellate” qualifies not only the ‘decree’ but also the ‘order’.
18. Although, what was decided by the learned single Judge in the present case is not an appeal from an appellate decree or appellate order, still the very exercise of jurisdiction being traceable to the power to decide a second appeal, the bar contained in Section 100-A of C.P.C. applies in all its rigour not only to the final orders passed in second appeals but also to every interlocutory order passed in the second appeal.
19. A Division Bench of this Court in Pedda Narasanna v. Dakanna, 1962 (2) ALT 427., has taken the view that an order passed by a learned single Judge in a second appeal refusing to grant interim injunction is not appealable to a Division Bench.
20. The power to create or enlarge jurisdiction is legislative in character as held by the Supreme Court in A.R. Anthulay v. R.S. Narak, . Pressing this reasoning into service, Sri K.A. Rama Rao the learned counsel for the appellant, contended that we must admit this Letters Patent Appeal and decide it on merits. We cannot agree. From the principle that the right of appeal is a statutory right, about which no exception can be taken, no conclusion follows that the present appeal is maintainable. The reasons we have already stated supra.
21. The learned counsel for the appellant next relied upon a Full Bench decision of this Court reported in M. Srinivas v. J.N.T. University, . Following a decision of the Supreme Court reported in Shah Babulal Khimji v. Jaber, AIR 1981 SC 1786, the Full Bench, held that Section 104(1) read with Order 43, Rule 1 C.P.C. was an additional right conferred on the litigant and in case an order was not appealable under Clause 15 of the Letters Patent, an appeal could still be filed under Section 104(1) read with Order 43, Rule 1, C.P.C. This case will not help the appellant as the facts in the case before the Full Bench are entirely different and bear no analogy to the facts of this case. As the writ petition seeking admission to B.E., course on the basis of alleged social status was dismissed, a review petition was filed which was also dismissed on merits. Against the order refusing to review, Letters Patent Appeal was filed and the Full Bench after exhaustively considering the case law, held that the Writ Appeal is maintainable under Clause 15 of the Letters Patent inasmuch as the order refusing to review is a judgment of the learned single Judge, and therefore, appealable under Clause 15 of the Letters Patent. This decision, therefore, has no application to the case on hand.
22. The learned counsel for the appellant, next relied upon a decision of the Division Bench reported in Government of A.P. v. B. Sathaiah, ., wherein, an order of rejection of an application for condonation of delay under Section 5 of the Limitation Act, is held appealable under Clause 15 of the Letters Patent.
23. When an ex parte decree was passed by a learned Subordinate Judge, an application was filed seeking to set aside the said decree. As the said petition was dismissed, refusing to set aside the ex parte decree, C.M.A. was filed in this Court. As there was delay in filing C.M.A. an application was filed to condone the delay in filing C.M.A. which was dismissed by the learned single Judge by an order dated 16-7-1990 and this is the order which is the subject matter of the Letters Patent Appeal before the Division Bench. The learned Judges held that the Letters Patent Appeal is maintainable against the order passed by the learned single Judge in appeal under Order 43, Rule 1 C.P.C. in view of the Full Bench decision reported in M. Srinivas v. J.N.T. University, , following the Supreme Court judgment in Shah Babulal Khimji v. Jaber, AIR 1981 SC 1786. The situation in the present case is entirely different and has no comparison whatsoever with that of the situation that existed before the Division Bench.
24. The learned counsel for the appellant has cited another case reported in Dewaji v. Ganpatlal, ., wherein, the Supreme Court held that any interlocutory order can be questioned in an appeal against the final decree or order even though no separate appeal is filed challenging the interlocutory order. This judgment also does not help the appellant.
25. The learned counsel for the appellant next placed reliance on a decision reported in W.T. Commr. v. Hashmathunnisa Begum, AIR 1989 SC 1025., for the proposition that one of the pillars of the statutory interpretation viz., the literary rule demands that if the meaning of the statutory interpretation is plain, the court must apply regardless of the result. We have no quarrel with this proposition.
26. For a similar proposition, the learned counsel for the appellant, cited another decision reported in S.P. Gupta and Ors. v. President of India and Ors., . In this decision, the learned Judges recalled the saying of Lord Bacon with approval that the function of a Judge is jus decree and not jus dare, i.e., to interpret the law and not to make it. None take any exception to this view.
27. The learned counsel for the appellant has finally relied upon a decision reported in Sushila Bai Laxminarayan Mudaliyar v. Nihal Chand Waghajibhai Shaha, . In this decision, the question that came up for consideration was, whether a Letters Patent Appeal would lie from an order passed by the learned single Judge under Articles 226 and 227 of the Constitution. The learned Judges observed that since in the cause title of the application both Articles 226 and 227 are mentioned, it is unfair and unjust to construe that the order was passed under Article 227 of the Constitution only and deprive the appellant the right of appeal under Clause 15 of the Letters Patent, where substantial part of the order sought to be appealed against is under Article 226 only. This decision also does not help the appellant.
28. Therefore, we have no hesitation to hold in answering the second question framed at the threshold of the judgment that no Letters Patent Appeal lies against an order made in an interlocutory application in a second Appeal. Hence, the Letters Patent Appeal is dismissed at the stage of admission.
29. Before parting with the case, we place on record our high appreciation for the learned counsel for both sides for the able arguments advanced by them. We gratefully acknowledge the assistance rendered by Sri N. Subba Reddy, former Additional Advocate General who readily agreed to our request to argue the case as Amicus Curiae. He argued the case very ably and presented all the facts of the question involved for adjudication.