R.Bhattacharya, J. - (1.) These two applications under Clause 15 of the Letters Patent, one filed in connexion with the Second Appeal No 1658 of 1965 and another relating to Second Appeal No. 1603 of 1966 have been heard together as the same question of law about the maintainability of these two applications are involved therein and this order shall govern both the matters.
(2.) The Appeal No. 1658 was allowed on 21-7-1976 and the Appeal No. 1603 was dismissed on 5th July, 1976. The plaintiff-respondent in Appeal No. 1658 filed the application for leave to appeal under Clause 15 of the Letters Patent on 3-11-1976 and the appellant of the other appeal filed an application under Clause 15 on 21-9-1976. For the sake of convenience both the matters were heard together. Mr. Panchanan Pal, the learned Advocate for the appellant, who is the apposite party in the application, filed in connexion with the Second Appeal No. 1658 and Mr. S. C. Das Gupta, the learned Advocate appearing on behalf of the respondent-opposite party in the other application raised a preliminary objection as to the maintainability of the application under Clause 15 of the Letters Patent in view of the introduction of the amendment of the Civil P. C. by the Amending Act of 1976. Their contention is that after the amendment of the Civil P. C. by the Amending Act of 1976, there can be no appeal against the decision of a judgment of the High Court sitting singly disposing of a second appeal and as such the present applications under Clause 15 of the Letters Patent are not maintainable and in any view no certificate or leave can be granted for an appeal against the decision made in the second appeal. Mr. Hemanta Kumar Lala has challenged this contention and his main argument is that before the amendment of the Civil P. C. of 1976 came into being, the two appeals were disposed of and, therefore, the petitioners have a right to prefer an appeal against the decision for which purpose the present applications have been filed. It has been contended further by Mr. Lala that as the applications were filed before the amendment of the Civil P. C. has come into force, the applications are maintainable and should not be rejected.
(3.) Admittedly, the applications had been filed before the amendment of the Civil P. C. came into force. The opposite parties to these applications rely upon Section 100-A of the Civil P. C. introduced by the Amending Act read with Sections 38 and 97 (2) (n) of the C. P. C. Amendment Act of 1976. Section 38 of the Amendment Act of 1976 inserts the new Section 100-A of the Principal Act and it runs as follows :--38. Insertion of new Section 100-A.--After Section 100 of the Principal Act, the following section shall be inserted :-- "100-A. No further appeal in certain cases. Notwithstanding anything contained in any Letters patent for any High Court or in any other instrument having the force of law or in any other for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall He from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal." Clause (n) of Sub-section (2) of Section 97 speaks about repeal and savings and I quote the relevant portion of Sub-section (2) of Section 97 of the Amendment Act of 1976 with Clause (n) as under :-- "2. Notwithstanding that the provisions of these Acts have come into force or the repeal under Sub-section (1) has taken effect and without prejudice to the generality of the provisions of the Section 6 of the General Clauses Act, 1897 (10 of 1897)- (n) Section 100-A as inserted in the Principal Act by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38; and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force.";