Single Judge dismissed an Letters Patent Appeal challenging a review order passed on an Order of First Appeal. Held that by virtue of Section 104 (2) of CPC, the appeal is barred in limine.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.261 of 2019
In
CIVIL REVIEW No.280 of 2017
======================================================
... ... Appellant/s
Versus
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023 2/7
Danapur PS Danapur Cantt. District Patna
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023 3/7
... ... Respondent/s
======================================================
Appearance : For the Appellant/s : Mr. Uma Kant Tiwary, Advocate For the Respondent/s : Mr. ======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)
Date : 26-07-2023
The Registry has noted a defect of the instant LPA not been maintainable for reason of it arising out of a civil review against an order in first appeal. The learned counsel for the appellants relied on a decision of the Hon’ble Supreme Court specifically relating to the maintainability of Letters Patent Appeal under Clause 10, as provided in Appendix E of the Rules of the High Court at Patna, 1916. Therein, the issue was with respect to the maintainability of an appeal from the order passed by a learned Single Judge of the Patna High Court in a first appeal against the order of the Tribunal under Section 140 of the Motor Vehicles Act, 1988, as it then stood. It was held so in Paragraph 8 of the decision in Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. and Ors; (2001) 6 SCC 158, which
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023 4/7
is extracted hereunder;
from a decree or order in a second appeal and from an order or judgment made in exercise of the revisional jurisdiction. In fact, it was held that though Clause 10 provides for an appeal, even
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023 5/7
against an order passed in a second appeal, if the Judge who passed the judgment declares the case to be a fit one for appeal; it cannot be maintained since section 100A of Code of Civil Procedure, 1908 (for brevity “CPC”) bars an appeal from a judgment in a second appeal by a learned Single Judge.
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023 6/7
“As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing of second appeal under sub-section (2) of Section 104, the right of appeal provided under clause 10 of the Letters Patent would not be available.”
Therefore, reliance on the judgment of this Court in New Kenilworth Hotel (P) Ltd. case [(1997) 3 SCC 462] will be of no avail to the respondents.
Patna High Court L.P.A No.261 of 2019 dt.26-07-2023
7/7
CPC.
uphold the objection raised by the Registry. The appeal stands rejected in limine .
(K. Vinod Chandran, CJ)
(Partha Sarthy, J)
Anushka/-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | |
| Uploading Date | 31.07.2023 |
| Transmission Date |
1 issue framed by the court
Whether the Letters Patent Appeal under Clause 10 of the Patna High Court Rules is maintainable against an order passed in a civil review which was itself based on a first appeal under Section 104 of
Colour shows how this judgement treated each authority
Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. and OrsFollowed¶51
(2001) 6 SCC 158 · Who else cites this
New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and OrsFollowed¶59
(1997) 3 SCC 462 · Who else cites this
Om Prakash Singh and Anr
Mostt. Sumitra Devi and Ors
Chief Justice K. Vinod Chandran
Partha Sarthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
