# P.S. SA THAPPAN (DEAD) BY LRS v. ANDHRA BANK LTD. AND ORS - **Citation:** [2004] Supp. 5 S.C.R. 188 - **Court:** Supreme Court of India - **Decided:** 2004-10-07 - **Case number:** Civil Appeal No. 689 of 1998 - **Bench:** N. Santosh Hegde, S.N. V Aria Va, B.P. Singh, H.K. Sema, S.B. Sinha - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-s-sa-thappan-dead-by-lrs-v-andhra-bank-ltd-and-ors-20297 - **Pages:** 84 ## Headnote Code of Civil Procedure, I 908: S. / 04(1) rlw or 43 R. l andS. l 04(2)-Bar under S. I 04(2)-Applicability to appeals permitted by any law inforce~Nature of-Held, S.104(1) rlw Or. 43 R. I confers additional powers of appeals against orders passed in appeal under S.104(1)-Thus, S.104(2) does not bar appeals permitted by any law in D force. S. I 04(1)-Scope of-Explained S.104(2) & (1) and 4 and JOO-A (prior to its amendment by Act 22 of 2002)-Bar under S.104(2)-Applicability of to appeal under c/.15 of the E Letters Patent of the Madras High Court-Held, S.104(1} specifically saves LPAs and the bar under S.104(2) does not apply thereto-A harmonious construction of S. I 04 leads to no other conclusion-Thus, the words in S.100A are not by way of abundant caution. Ss. 3 and 9-Powers and position of District Court vis-a-vis-High F Court-Discussed Ss.96-103,104 and 105-Nature of appeals under-Discussed High Courts-Letters Patent-Legal status-Primacy over CPC in case of conflict with-Explained-Letters Patent of Bombay High Court-Letters G Patent of Madras High Court. Precedents-Ratio decidendi-Principles of culling out of-ExplainedConstitution of India, Art. 141. The question involved in these appeals against the judgments of the II 188 P.S. SATHAPPAN v. ANDHRA BANK LTD. 189 Madras High Court is the interpretation of Section 104 C.P.C. vis-a-vis A Clause 15 of the Letters Patent of the High Court of Madras. It was held by the High Court of Madras that a Letters Patent Appeal is not maintainable against an order passed by a Single Judge of the High Court sitting in Appellate Jurisdiction. Hence the appeals. When the appeals came before a Division Bench of this Court, it B noticed a conflict of opinion between a three Judge Bench of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors., [1997] 3 SCC 462 and a two Judge Bench in Resham Singh Pyara Singh v. Abdul Sattar, [1996) 1 SCC 49, on the one hand and a Constitution Bench decision in Guiab Bai and Anr. v. Puniya, (1996) 2 SCR 102 on the C other hand and referred the matter to a Constitution Bench. Thus these appeals are before the Constitution Bench. Allowing the appeals and remitting the matter back to the High Court, the Court D HELD: (Per majority - S.N. Variava, J. for himself and B.P. Singh and ' H.K Serna, JJ.] 1.1. The unanimous view of all Courts till 1996 was that Section 104(1) C.P.C. specifically saved Letters Patent Appeals and the bar under Section 104(2) did not apply to Letters Patent Appeals. The view has been E that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words 'Letters Patent' but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred. [262-F) F 1.2. A contrary view was adopted by a 2 Judge Bench of this Court. In this case there was an Appeal, before a Single Judge of the High Court, against an order of the City Civil Court granting an interim injunction. The question was whether a Letters Patent Appeal was maintainable G against the order of the Single Judge. This Court, without considering any of the other previous authorities of this Court, without giving any reasons whatsoever, did not follow the ratio laid down in Shah Babula/ Khimji's case. (262-G, HJ 1.3. Then in the case of New Kenilworth Hotel (P) Ltd., the question, H 190 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R. A whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo order was passed by the trial Court. In Appeal, a single Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babula/ Khimji (supra) and to the 2 Judge Bench decision in the case of B Resham Singh Pyara Singh (supra). S ## Text _Characters 0–39,645 of 205,747. This is a partial read: ask again with offset=39645 for what follows._ A B c P.S. SA THAPPAN (DEAD) BY LRS v. ANDHRA BANK LTD. AND ORS. OCTOBER 7, 2004 (N. SANTOSH HEGDE, S.N. V ARIA VA, B.P. SINGH, H.K. SEMA AND S.B. SINHA, JJ.] Code of Civil Procedure, I 908: S. / 04(1) rlw or 43 R. l andS. l 04(2)-Bar under S. I 04(2)-Applicability to appeals permitted by any law inforce~Nature of-Held, S.104(1) rlw Or. 43 R. I confers additional powers of appeals against orders passed in appeal under S.104(1)-Thus, S.104(2) does not bar appeals permitted by any law in D force. S. I 04(1)-Scope of-Explained S.104(2) & (1) and 4 and JOO-A (prior to its amendment by Act 22 of 2002)-Bar under S.104(2)-Applicability of to appeal under c/.15 of the E Letters Patent of the Madras High Court-Held, S.104(1} specifically saves LPAs and the bar under S.104(2) does not apply thereto-A harmonious construction of S. I 04 leads to no other conclusion-Thus, the words in S.100A are not by way of abundant caution. Ss. 3 and 9-Powers and position of District Court vis-a-vis-High F Court-Discussed Ss.96-103,104 and 105-Nature of appeals under-Discussed High Courts-Letters Patent-Legal status-Primacy over CPC in case of conflict with-Explained-Letters Patent of Bombay High Court-Letters G Patent of Madras High Court. Precedents-Ratio decidendi-Principles of culling out of-ExplainedConstitution of India, Art. 141. The question involved in these appeals against the judgments of the II 188 P.S. SATHAPPAN v. ANDHRA BANK LTD. 189 Madras High Court is the interpretation of Section 104 C.P.C. vis-a-vis A Clause 15 of the Letters Patent of the High Court of Madras. It was held by the High Court of Madras that a Letters Patent Appeal is not maintainable against an order passed by a Single Judge of the High Court sitting in Appellate Jurisdiction. Hence the appeals. When the appeals came before a Division Bench of this Court, it B noticed a conflict of opinion between a three Judge Bench of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation and Ors., [1997] 3 SCC 462 and a two Judge Bench in Resham Singh Pyara Singh v. Abdul Sattar, [1996) 1 SCC 49, on the one hand and a Constitution Bench decision in Guiab Bai and Anr. v. Puniya, (1996) 2 SCR 102 on the C other hand and referred the matter to a Constitution Bench. Thus these appeals are before the Constitution Bench. Allowing the appeals and remitting the matter back to the High Court, the Court D HELD: (Per majority - S.N. Variava, J. for himself and B.P. Singh and ' H.K Serna, JJ.] 1.1. The unanimous view of all Courts till 1996 was that Section 104(1) C.P.C. specifically saved Letters Patent Appeals and the bar under Section 104(2) did not apply to Letters Patent Appeals. The view has been E that a Letters Patent Appeal cannot be ousted by implication but the right of an Appeal under the Letters Patent can be taken away by an express provision in an appropriate Legislation. The express provision need not refer to or use the words 'Letters Patent' but if on a reading of the provision it is clear that all further Appeals are barred then even a Letters Patent Appeal would be barred. [262-F) F 1.2. A contrary view was adopted by a 2 Judge Bench of this Court. In this case there was an Appeal, before a Single Judge of the High Court, against an order of the City Civil Court granting an interim injunction. The question was whether a Letters Patent Appeal was maintainable G against the order of the Single Judge. This Court, without considering any of the other previous authorities of this Court, without giving any reasons whatsoever, did not follow the ratio laid down in Shah Babula/ Khimji's case. (262-G, HJ 1.3. Then in the case of New Kenilworth Hotel (P) Ltd., the question, H 190 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R. A whether a Letters Patent Appeal was maintainable, again arose. In this case a status quo order was passed by the trial Court. In Appeal, a single Judge of the High Court, vacated the Order of status quo. Attention of this Court was drawn to the 3 Judge Bench decision in the case of Shah Babula/ Khimji (supra) and to the 2 Judge Bench decision in the case of B Resham Singh Pyara Singh (supra). Shah Babula/ Khimji's case being a 3 Judge Bench decision would prevail over Resham Singh Pyara Singh 's case. It was also a binding decision on this Bench yet surprisingly the Court followed Resham Singh Pyara Singh 's case. Of course the other decisions of this Court do not appear to have been brought to the attention of the Court. In this case it was also held that the concerned Order was not C covered by Clause 10 of the Letters Patent. It has been omitted to be noticed that the concerned Letters Patent had three limbs as set out in Central Mine Planning & Design Institute Ltd. (263-D, E, HJ Resham Singh Pyara Singh v. Abdul Sattar, (1996) 1 SCC 49 and New Kenilworth Hotel (P) Ltdv. Orissa State Finance Corporation and Ors., (1997) n· 3 sec 462, overruled. Hurrish Chunder Chowdhry v. Kali Sundari Debia, 10 I.A. p. 4; L. Ram Sarup v. Mt. Kaniz Ummehani, AIR (1937) Allahabad 165; Shah Babula/ Khimji v. Jayaben D. Kania, (1981) 4 SCC 8; National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick & Bros. Ltd., AIR (1953) SC 357; E Union of India v. Mahindra Suppl)! Company, (1962) 3 SCR 497; South Asia Industries (P) Ltd. v. S.B. Sarup Singh and Ors., AIR (1965) SC 1442; Guiab Bai v. Puniya, (1966) 2 SCR 102 and Central Mine Planning & Design Institute Ltd. v. Union of India, (2001) 2 SCC 588, referred to. F 2. Even after Resham Singh Pyara $ingh and New Kenilworth Hotel (P) Ltd. two decisions this Court continued to hold thata Letters Patent Appeal is not affected. Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. (264-E) G Resham Singh Pyara Singh v. Abdul Sattar, (1996) 1 SCC 49; New Kenilworth Hotel (P) Ltd v. Ori~sa State Finance Corporation and Ors., (1997) 3 SCC 462; Vinita M. Khanolkar v. Pragna M. Pai, (1998) 1 SCC 500; Chandra Kanta Sinha v. Oriental Insurance Co. Ltd., (2001) 6 SCC 158 and Sharda Devi v. State of Bihar, (2002) 3 SCC 705, referred to. H 3.1. Sub-section (1) of Section 104 CPC provides for an appeal from - P.S. SATHAPPAN v. ANDHRA BANK LTD. 191 the orders enumerated under sub-section (I) which contemplates an appeal A from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Subsection (1) therefore contemplates three types of orders from which appeals are provided namely, (1) orders enumerated in sub-section (l); (2) appeals otherwise expressly provided in the body of the Code and 3) appeals_ provided by any law for the time being force. 1t is· not disputed that an B appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force. As such an appeal is expressly saved by Section 104(1). Sub-clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict C between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e., those Orders against which an Appeal under "any other law for the time being in force" is not permitted. Section 104(2) would not thus D bar a Letters Patent Appeal. Effect must also be given to Legislative intent of introducing Section 4 C.P.C. and the words "by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under "any other law for the time being in force" E undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-clause (1 ), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. It is not that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves. F a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in Section 104(2) that a Letters Patent Appeal is also prohibited. (266-F, G, H; 261-A, B, C, D, E) 3.2. A specific exclusion may be clear from the words of a statute G even though no specific reference is made to Letters Patent. But where· there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "Order will be final" are not sufficient. In such cases, i.e., where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. When the Legislature wanted to exclude H 192 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R . . A a Letters Patent Appeal it specifically did so. The words used in Section lOOA CPC are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeat would not be barred. The Legislature has been aware that it had incorporated the saving B clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion has been provided. Now by virtue of Section IOOA no Letters Patent Appeal would be maintainable. However; it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section IOOA nor Section 104(2) barred a Letters Patent Appeal. Applying the above principle to C the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law. [267-H; 268-A, B, D, G, H; 269-A) 4. Undoubtedly, Clause 44 of the Letters Patent permits amendment D or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, E in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To say that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar 's case and Sharda Devi's case a Letters Patent is the Charter of the High Court. As held in Shah Babula/ Khimji's case a Letters Patent is the specific law under which a High Court derives its F powers. It is not any subordinate piece of legislation. A Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled G law, that in the event of a conflict between a special law and a general law, the special law must always ·prevail. There is no conflict between Letters Patent and Section 104 CPC but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific ex~Iusion. T_his is also clear from Section 4 of Civil Procedure Code which provides H that nothing in the Code shall limit or affect any special law. As set out in P.S. SATHAPPAN v. ANDHRA BANK LTD. 193 Section 4 C.P.C. only a specific provision to the contrary can exclude the A special law. The specific provision would be a provision like Section lOOA. [269-B, C, D, E, F,) Vinita M Khanolkar v. Pragna M Pai, [1998) l SCC 500; Sharda Devi v. State of Bihar, [2002) 3 SCC 705 and Shah Babula! Khimji v. Jayaben D. Kania and Anr., [1981) 4 sec 8, relied on. B 5. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing C anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have "any law for the time being in force" which permits such an Appeal. In any event there is no provision which permit a larger Bench of the District D Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights of Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). There is nothing anomalous in such a situation; E Consequently the plea of discrimination must be rejected. The Order of the High Court cannot be sustail!ed. It is hereby set aside. The matters are remitted back to the High Court for decision on merits. [270-G; 271-A, B, CJ South Asia Industries Private Ltd v. S.B. Sarup Singh and Ors., [1965) F 2 SCR 756, relied on. Per minority (by S.B. Sinha, J. for himself and N. Santosh Hegde, J.): 1.1. Section 104 of the Code of Civil Procedure has to be read as a whole. Sub-section (1) of Section 104 provides for appeals from the orders specified therein and from no other; save as otherwise expressly provided G in the body of the said Code or any law for the time being in force. ·When the special statute confers a right of appeal, such right is saved, but by reason thereof no right of appeal is created under Section 104 of the Code. When a right of appeal is conferred under a special statute, the bar contained in sub-section (2) of Section 104 of the Code would not operate H 194 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R. A and a right of intra-court appeal provided for in the Letters Patent of the High Court subject to any statutory embargo would, thus, be saved. To put the matter differently, if a right of appeal is created by a statute, the same would be governed by the terms thereof. The question as to whether any appeal governed by Clause 15 of the Letters Patent is maintainable B or not will have to be judged having regard to the provisions contained therein as also the scheme thereof. [210-D, E, F) 1.2. Sections 104 and 105 provide for an integrated scheme. The provisions contained therein must be read as a whole. By' reason of subsection (1) of Section 104, a limited right of appeal has been conferred in C relation to the categories of cases specified therein. However, if an order is passed which does not come within the purview of sub-section (1) of Section 104, the right of appeal must be referable to any other provision of the Code, as for example, Section 96 or Section 100 or any other special statute. Section 104 provides for an appeal from an o·rder passed by an appropriate court. Section 104 and Order XLill of the Code contain D provisions as regard appealability of the orders in the cases specified therein and in that view of the matter they must be invoked in their entirety and not in isolation. (211-B, C, DJ 1.3. A right of appeal is a creature of statute and the said right, thus, can only be enjoyed if law confers the same. The Legislature thought it E fit to confer such a right upon the suitor by reason of Section 104 of the Code read with Order XLIII thereof. When a right is granted under a statute, a further right of appeal must receive such construction which would give effect to the plain meaning of the words emphasized in the sec~ion. By reason of sub-section (1) of Section 104, apart from the orders p made appealable therein, the Code recognizes that there may be other o_rders appealable under any other law for the time being in force and further provides that other orders save as otherwise expressly provided in the body of the Code or by any law for the time being in force, would not be appealable ones. Sub-section (1) of Section 104 of the Code provides for an appeal from the original order whether passed by a subordinate G court or High Court exercising original jurisdiction and not from an appellate order. In other words, it provides for a fitst appeal. An appeal under Clause 15 ofthe Letters Patent is saved under Sub-section (1) of Section 104 of the Code when a right of appeal is required to be exercised in relation to an original order. An appellate order is not contemplated • H by Sub-section (1) of Section 1.04 of the Code. Letters Patent of a High P.S. SATHAPPAN v. ANDHRA BANK LTD. 195 Court or a special statute also in the context of Section 104(1) of the Code A do not speak of an appellate order. Thus, when an appeal under Section 104(1) or the Letters Patent of the High Court is availed of, there is no question of any further appeal unless the same is provided for under the statute itself. Sections 4 and 104 of the Code, furthermore, must be read together. Appeal under the special statute is saved only to the extent a B contrary provision is not contained in other provision thereof. [211-E, F, G, H; 212-A, BJ 2.1. For proper construction of Section 104 of the Code, vis-a-vis Clause 15 of the Letters Patent, it is necessary to ascertain the intention of the Parliament. If a right of appeal, it is trite, is a creature of statute, C it must be governed thereby. Sub-section (2) of Section 104 clearly states that no appeal from an order passed under sub-section (1) thereof would be maintainable. Proviso appended to Section 104 of the Code provides for a limited right of appeal fn respect of clause (ft) of sub-section (1) of Section 104 of the Code which is an indicia of the fact that such a right may be circumscribed. The statute has used the language in the negative D and, thus must be construed as mandatory. In view of the fact that an appeal from an order specified in Section 104 of the Code is maintainable only thereunder and from no other it leads to incongruity that in the event the forum is the High Court the appellate judgment would be governed by Clause 15 of the Letters Patent, but in the event the forum is the District E Judge, the judgment would be governed by sub-section (2) of Section 104 of the Code. If such a contention is accepted, the same 'Yould not only give rise to an anomalous situation which may be culled out from a plain reading of the said provision but also would give rise to different treatment to different classes of litigants, although a right of appeal is available to both the classes from orders of similar nature which possibility should, 1F as far as possible, be avoided. The wordings of Section 104(2) of the Code, do not call for more than one interpretation. Liberal interpretation, as is well known, is the rule. Furthermore, it is now well-settled that when two interpretations of a statute are possible, the court may prefer and adopt the purposive interpretation having regard to object and intent thereof. G (213-E, F, G, H; 214-A, Bl Swedish Match AB and Anr. v. Securities & Exchange Board, India and Anr., (2004) 7 SCALE 158, relied on. 2.2. The purport and object of enacting sub-section (2) of Section 104 of the Code is to avoid delay in disposal of the matter. When the H 196 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. A statutory intention of minimizing the delay in the finality of the decision is manifest, the Court must interpret the provisions accordingly. Appeals under the aforementioned provision as also under Order LXIII of the Code relate to interlocutory orders. By reason of an order passed thereunder the matter may not be finally disposed of. If the Parliament in the B aforementioned situation thought it fit to cut down a further appeal, no exception thereto can be taken. In any event, even if it be held that by reason of sub-section (2) of Section 104 of the Code a party may be deprived of a Letters Patent Appeal in terms of Clause 15 of the Letters Patent, he would be at liberty to file, in an appropriate case,,an application under Article 136 of the Constitution of India before· this Court. Even, in C a case where the remedy under Section 104(1) is not availed of, in an appropriate case the order may be questioned in the appeal against the ultimate decree in terms of Section 105 thereof. [214-C, D, E] D Municipal Corporation of Brihanmumbai'and Anr. v. State Bank of India, [1999) 1 sec 123, relied on. 3.1. Letters Patent is a special statue but in the event of a conflict, the provisions of the Code shall prevail. The power under Clause 15 of the Letters Patent is not a constitutional power of a High, Court. [214-GJ Vinita M Khano/kar v. Pragna M Pai and Ors., (1998) 1 SCC 500 E Sharda Devi v. State of Bihar, [2002) 3 SCC 705, distinguished. Her Majesty the Queen v. Burah, (1878) 3 PC 889 and Chunial Basu and Anr. v. The Hon 'ble Chief Justice of the High Court at Calcutta and Ors., AIR (1972) Calcutta 470, referred to. 3.2. The Letters Patent although is a subordinate legislation but F nevertheless would be a law within the meaning of Articles 225 and 372 of the Constitution of India, but the same cannot prevail over a Legislative Act, if Clause 44 of the Letters Patent is to be given a proper meaning. The provisions of Letters Patent despite attainment of independence by India are saved by Section 106 of the Government of India Act, 1919, G Section 223 of the Government of India Act, 1935, Clause 2(1) of India (Adaptation of Existing Laws) Order, 1949 and Section 18(3) of the Independence Act, 1947. Letters Patent, thus, would undoubtedly come within the meaning of existing law but the status thereof cannot be higher than that of the statute made law. Not only in terms of Clause 44 of the Letters Patent, but having regard to the fact that the same is a subordinate ' H legislation, it would be subject to la,ws made by a competent legislature. P.S. SATHAPPAN v. ANDHRA BANK LTD. 197 The Letters Patent is not a statutory enactment although it has the force A of law. Clause 44 of the Letters Patent in no uncertain terms states that the provisions thereof would be subject to the legislative powers of the Governor-General in Legislative Council, and also of the Governor . General in Council under Section 71 of the Government of India Act, 1915. (215-C, D, El B Printers (Mysore) Ltd. v. MA. Rasheed and Ors., [2004) 4 SCC 460, relied on. Black's Law Dictionary, Fifth Edition, page 1278, referred to. 3.3. The provisions of the Letters Patent are also in all respects C amenable to amendments and alterations by any Legislative or Parliamentary Acts. The Code of Civil Procedure is a Parliamentary Act. Section 4 of the Code saves only such provisions in relation whereto then~ does not exist any provision contrary thereto in the Code. The said clause would, thus, apply only when there is no specific provision in the Code tc;i D the contrary or in any other provision contained in any other special statute. Thus, there is no hesitation in coming to the conclusion that when an appeal is maintainable only in terms of sub-section (1) of Section 104, sub-section (2) thereof would control such appeal and the limitation provided thereunder on further appeal shall be fully applicable. Thti Letters Patent under the seal may be issued for various purposes, but E primarily by way of executive function. The Letters Patent, however, may be issued also on the advice of the Privy Council or under a Statute. No Letters Patent Appeal would lie against the orders passed in appeals disposed of by Single Judge of the High Court in appeals preferred thereto under Order XLIII Rule 1 read with Section 104 of the Code against the F order passed by the subordinate court or district courts. [215-H; 216-A, B, C; 217-BJ Shah Babula/ Khimji v. Jayaben D. Kania and Anr., [1981) 4 SCC 8, relied on. Mohd Naimullah Khan v. Ihsan Ullah, (1892) ILR 14 All 226; Piarilal v. Madan/al, (1917) ILR 39 All 191 : AIR (1917) All 325; L. Ram Sarup v. Mt. Kaniz Ummehani, AIR (1937) Allahabad 165 and Vaman Ravji Kulkarni v. Nagesh Vishnu Joshi and Ors., AIR (1940) Born. 216, referred to. G 4. The question as to whether a Letters Patent Appeal would be H 198 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. A maintainable or not would also depend upon the scheme of the statute. Such a scheme barring a Letters Patent Appeal is found to be existing in Representation of the People Act. Under Article 329(b) of the Constitution, a Single Judge of a High Court exercises a jurisdiction to hear an election dispute. While doing so he exercises a special jurisdiction. Having regard to the history thereof as also the limited nature of appeal from judgment B disposing of an election petition expressly provided under Section 116-A of the Representation of the People Act, it will be evident that a right of appeal under the Letters Patent had been held to have been taken away by necessary implication. [217-C-D, El C NP. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors., (19521 SCR 218; Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Ors., [1988) 2 SCC 1 and Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, (2003) 7 SCC 66, referred to. 5.1. It is true that Section lOOA of the Code contains a non-obstante D clause as regard the overriding effect of the said provision over the Letters Patent of the High Court but the same, was done by way of ex abundanti cautela. Furthermor.e, the Code of Civil Procedure (Amendment) Act, 1976 and the Code of Civil Procedure (Amendment) Act; 2002 being subsequent statutes, the same may not have any application in relation to the interpretation of sub-section (2) of Section 104 of the Code. It is not E necessary, that the provision restricting a further right of appeal must specifically mention the provisions of the Letters Patent of the High Courts or any other statute inasmuch as the same has to be construed having regard to the scheme thereof. What is recognized under Sub-sectior. (1) of Section 104 of the Code following the decisions of the Calcutta, Madras F and Bombay High Courts are those appeals which are provided for under special statute and not an appeal from the appellate ordertherein. [218-B, C, DJ Too/see Money Dassee and Ors. v. Sudevi Dassee & Ors., (1899) 26 Cal. 361; Sabhapathi Chetti and Ors. v. Naruyanasami Chetti, (1902) 25 Mad. G 555 and the Secretary of State for India in Council v. Jehangir Maneckji Cursetji, (1902) 4 Born. L.R. 342, referred to. 5.2. If there is a conflict between an appeal under the Code and the Letters Patent both the provisions have to be read harmoniously so as to save an appeal which is not otherwi.se provided for. It may be noticed that H when an ~ppeal is maintainable under the Letters Patent by reason of its P.S. SATHAPPAN v. ANDHRA BANK LTD. 199 being a 'judgment' within the meaning of Letters Patent such an appeal A would be maintainable despite the fact that no provision therefor has been made in Section 104 thereof. In a case, however, where an appeal may be maintainable both under Sub-section (1) of Section 104 as also the Letters Patent a difficulty may arise to the extent that where the orders sought to be appealed against is not a 'judgment' whether Order XLIII Rule l would come into play. But if both the provisions are read together, it may B be held that Order XLIII Rule 1 provides for an additional right. So construed, a harmonious meaning can be attributed both to Section 104 of the Code and to Letters Patent but there is no doubt that if a right of appeal is availe