V.GOPALA GOWDA, CJ & L.MOHAPATRA, J.
WRIT APPEAL NO.107 OF 2009. (Decided 22.5.2010).
MAHAMMED SAUD & ANR. ............ Appellants.
.V.
DR.(MAJ) SHAIKH MAHAFOOZ & ORS. ............ Respondents.
CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) - SEC.151.
For Appellants – M/s. R.C.Sarangi, S.Das, P.K.Singh, M.K.Patnaik
& S.S.Mohanty.
For Respondents – M/s. B.Routray, D.K.Mohapatra, B.B.Routray &
S.Jena (For R-1)
M/s. Yeeshan Mohanty, P.C.Biswal, S.N.Mishra,
M.R.Samal & B.P.Das (For R-2)
M/s. A.P.Bose (For R-3)
L.MOHAPATRA, J. This writ appeal is directed against the order dated 3.7.2009
passed by the learned Single Judge in Misc.Case No.397 of 2009 arising out of
F.A.O.No.386 of 2007.
2. Learned counsel for the respondents raised a preliminary objection with regard to
maintainability of the appeal. In order to determine the question as to whether this
appeal is maintainable or not, it is necessary to look into the facts leading to filing of this
appeal.
3. F.A.O.No.386 of 2007 had been filed before this Court challenging the order dated
9.9.2005 passed by the learned Ad hoc Additional District Judge, F.T.C.No.3,
Bhubaneswar in Interim Application No.12 of 2005 arising out of C.S.No.492 of 2004
rejecting the application filed by the present respondents for appointment of receiver
under Order 40, Rule 1 of the Code of Civil Procedure and directing both parties to
maintain detailed accounts of the suit property and produce the same in future, if
required by the Court. The learned Single Judge disposed of the aforesaid appeal by
order dated 6.8.2008 directing the trial court to put the property into auction between the
parties fixing the off-set price not less than Rs.50,000/- and further directing that the
highest bidder, on depositing the bid amount, shall be given in possession of the
property and the said arrangement shall continue each year till disposal of the suit. In
pursuance of the said order passed by the learned Single Judge, the property was put to
auction by the trial court and the parties participated in the auction. Defendant No.3-
Shaik Mahfooz, who is respondent no.3 in this appeal, became the highest bidder, but
he failed to deposit the bid amount in court. Even though time was extended up to
29.4.2009, the said respondent no.3 did not deposit the amount and plaintiff no.1, who
is respondent no.1 before this Court, being the next highest bidder was directed to
deposit the bid amount by 14.5.2009 and become the receiver of the property in
question. He deposited the bid amount on 12.5.2009 and filed a memo for being
appointed as receiver of the property. The present appellants, who are defendants 1 and
2 along with respondent no.3 objected to the said prayer on the ground that plaintiff-
respondent no.1 cannot be given possession of the property in question as there is no
such order. Before the said order dated 16.5.2009, Misc.Case No.637 of 2008 was filed
in the aforesaid disposed of appeal before this Court for modification and in the said
Misc.Case, a clarification was made by this Court to the extent that the property shall
include the hotel and restaurant running in the name and style of M/s.Hotel Sahara(Unit
of Hotel Oasis(P) Ltd.) and, therefore the trial court in the said order dated 16.5.2009
appointed the plaintiff-respondent no.1 as the receiver in respect of Hotel and restaurant
as stated above. The present appellants were directed to hand over possession of the
said property to plaintiff-respondent no.1. The said order of the trial court was not
complied with and an application was filed by the plaintiff-respondentno.1 alleging
therein that though he has been appointed as receiver and the defendant-appellants
were directed to hand over possession of the said hotel, they refused to hand over the
possession for which the matter has been reported before the concerned Police Station
and a prayer was made for police help to take possession of the said hotel. The petition
was resisted on the ground that time till 22nd May, 2009 had been granted to take
possession of the hotel and the said time had not expired. Therefore, by order dated
22.5.2009, the trial court rejected the petition as premature. On 22.5.2009, another
similar application was filed by the plaintiff-respondent no.1 and when the matter stood
thus, Misc.Case No.397 of 2009 was filed in this Court in the above disposed of F.A.O.
and in the said Misc.Case, order was passed to provide adequate protection to the
receiver appointed to take possession of the property in question. The said order is the
subject matter of challenge in this appeal.
4. Learned counsel for the respondents relied on a Full Bench decision of this Court
reported in 2008(II) OLR(FB)-725 arising out of the present case to substantiate his
contention that the present appeal is not maintainable. The Full Bench in the aforesaid
decision came to the following conclusions as reflected in paragraph 47 of the
judgment, which is quoted below:-
“We have heard the learned counsel for the parties patiently, noted the
citations carefully, perused the materials meticulously and considered the
submissions pragmatically and for the discussions made above, we have arrived
at the following conclusions :
(1) After introduction of Section 100-A in the Code of Civil Procedure by 2002
Amendment Act, no Letters Patent Appeal is maintainable against a
judgment/order/decree passed by a learned Single Judge of a High Court.
(2) The decision of a Division Bench of this Court in Birat Ch. Dagra case (supra)
has not laid down the correct position of law. On the other hand, the conclusions
arrived at by Division Benches of this Court in V.N.N. Panicker and Ramesh
Ch.Das cases (supra) are held to be good law and are confirmed.
(3) A writ Appeal shall lie against the judgment/orders passed by a learned 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 the Constitution, if any
order/judgment/decree is passed in exercise of jurisdiction under Article 226, a
Writ Appeal will lie, whereas no Writ Appeal will lie against
judgment/order/decree passed by a Single Judge exercising powers of
superintendence under Article 227 of the Constitution.
(4) No Letters Patent Appeal shall lie against judgment/order passed by a learned
Single Judge in proceedings arising out of Special Acts.”
5. With reference to the aforesaid judgment, Shri Sarangi, learned counsel
appearing for the appellants submitted that after disposal of F.A.O., learned Single
Judge has become functus officio and could not have entertained any further
Misc.Cases for further orders and only Misc.Cases for the purpose of correction or
modification could be entertained after disposal of the appeal. It was further submitted by
the learned counsel for the appellants that the order passed by the learned Single Judge
after disposal of the appeal has no connection with the issue involved in the F.A.O. and,
therefore, such orders could only be passed in exercise of jurisdiction under Article 226
of the Constitution of India and, therefore, the present appeal is maintainable in view of
the Full Bench decision. Reference was made to several decisions by the learned
counsel for the appellants in order to substantiate the above contention and the said
decisions are as follows:
A.I.R.2008 S.C.77 (Narpat Singh Vrs. Rajasthan Financial Corporation),
2008(72)AIC 183(S.C.) (Sachida Nanda Lal @ Sachida Nand Shah Vrs. State of
Bihar (Now Jharkhand), 1 (2008) CLT 194(SC) (Gaudiya Mission Vrs. Shobha Bose
and another), 1 (2008) CLT 199(SC) ( State of M.P. and others Vrs. Madhukar Rao),
(2008) 7 Supreme Court Cases 738 (M.V.Janardhan Reddy Vrs. Vijaya Bank and
others), 2003 SAR (Civil) 583 SC (Sh.Dwark Prasad Agarwal(D)) by L.rs. and
another Vrs. B.D. Agarwal and others), AIR 1988 Supreme Court 1531 (A.R.Antulay
Vrs. R.S.Nayak and another), 2009 AIAR (Civil) 235 (U.P.State Road Transport
Corporation Vrs. Assistant Commissioner of Police (Traffic) Delhi), AIR 2008 SC
690 (State of Rajasthan Vrs. Ganeshi Lal), AIR 2008 Supreme Court
863( Government of Karnataka and others Vrs. Gowramma and others), AIR 2008
Supreme Court 403( Oriental Insurance Co. Ltd. Vrs. Smt.Raj Kumari and others)
and 2009(2) CCC 73 (SC) (Rajasthan State Road Transport Corporation and
another Vrs. Bal Mukunda Bairwa).
6. After careful perusal of the decisions cited by the learned counsel appearing for the
appellants, though we find that there is no direct bearing of the issues involved in these
reported cases with the issue involved in this appeal, there is substance in the
submission of the learned counsel appearing for the appellants that after disposal of
F.A.O., learned Single Judge could not have entertained the Misc. Petitions for different
purposes and only applications for modification or correction of orders could be
entertained. Therefore, even if it is construed that the order impugned in this appeal is
without jurisdiction, the learned Single Judge having became functus officio after
disposal of the appeal, the said order is not appealable. The only conclusion one can
arrived at is that the impugned order has been passed in exercise of inherent powers
under Section 151 of the Code of Civil Procedure and, therefore, the writ appeal against
the said order cannot be maintained. The learned counsel for the appellants made a
reference to Section 100-A of the Code of Civil Procedure and also Clause 10 of the
Letters Patent Appeal to substantiate his submission that the appeal is maintainable.
The submissions made by the learned counsel Shri Sarangi in this regard were also
argued by him before the Full Bench but such submissions were not accepted and the
Court specifically came to a conclusion that only an order passed by the learned Single
Judge under Article 226 of the Constitution of India can be subjected to an appeal, but
any order passed by the High Court in exercise of its power superintendence under
Article 227 of the Constitution of India is not appealable. The Full Bench also held that
no Letter Patent Appeal shall lie against any judgment/order passed by the learned
Single Judge in proceedings arising out of Special Acts. The F.A.O. had been filed under
Order 43, Rule 1 of the Code of Civil Procedure and the order passed by the learned
Single Judge after disposal of the appeal can only be construed to be one in exercise of
jurisdiction under Section 151 of the Code of Civil Procedure. Therefore, applying the
principles laid down by the this Court in the aforesaid Full Bench decision, this appeal is
not maintainable. Accordingly, we dismiss the appeal as not maintainable.
7. Before parting with the case, we would like to make an observation that after
disposal of a case, as observed by the Hon’ble Supreme Court in some of the decisions
referred to above, no further Misc. Cases should be entertained except for the purpose
of correction or modification.
Writ appeal dismissed.