Published on: 22 July 2023 at 10:30 IST
Court: Supreme Court
Citation: Shah Babulal Khimji v. Jayaben D. Kania (1981)
Honourable Supreme Court of India has held that there is no inconsistency between Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908 CPC and the appeals under the Letters Patent. It is held that is nothing to show that the letters patent in any way excludes or overrides the application of Section 104 read with Order 43 Rule 1 CPC or to show that these provisions would not apply to internal appeals within the High Court.
79. This now brings us to the second important point which is involved in this appeal. Despite our finding that Section 104 read with Order 43 Rule 1 applies to letters patent appeals and all orders passed by a trial Judge under clauses (a) to (w) would be appealable to the Division Bench, there would still be a large number of orders passed by a trial Judge which may not be covered by Order 43 Rule 1.
The next question that arises is under what circumstances orders passed by a trial Judge not covered by Order 43 Rule 1 would be appealable to a Division Bench. In such cases, the import, definition and the meaning of the word “judgment” appearing in clause 15 assumes a real significance and a new complexion because the term “judgment” appearing in the letters patent does not exclude orders not falling under the various clauses of Order 43 Rule 1. Thus the serious question to be decided in this case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word “judgment” used in clause 15 of the letters patent.
The meaning of the word “judgment” has been the subject-matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time, unfortunately, no unanimity has so far been reached. As held by us earlier it is high time that we should now settle this controversy once for all as far as possible.
Drafted by Abhijit Mishra
