KOKJE, J. - (1.) HEARD on the question of maintainability as preliminary objections was raised by the respondents that this appeal is not maintainable for more than one reason.
(2.) THIS appeal has been preferred u/cl. 18 of the Rajasthan High Court Ordinance, 1949. It is against the order passed by the learned Single Judge in an appeal against an order on application for temporary injunction passed by the Additional District Judge, Court No. 5, Jaipur City, Jaipur the main question, therefore, is as to whether from the order passed by the learned Single Judge in a Miscellaneous Appeal u/o. 43, R. 1 CPC, are appeal u/cl. 18 of the Rajasthan High Court Ordinance would lie or not? Learned counsel for the appellant relied on the decision of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania & Anr. (1 ). Learned counsel submitted that Cl. 15 of the Letter Patent of the Bombay High Court gives restricted right of appeal, whereas Cl. 18 of the Rajasthan High Court Ordinance has wider scope of appeal. According to the learned counsel, the right of appeal given by the Rajasthan High Court Ordinance cannot be curtailed or defeated by Sec. 104 (2) of the CPC. Learned counsel also relied on the decision of the Supreme Court in Vanito M. Khanolkar vs. Pragna M. Pai & Ors. (2), wherein it has been observed that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court and that the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. Learnec counsel for the respondents on the other hand relied on a D. B. decision of this Court in Ratan Kumari vs. Dr. Chandra Mohan Prasad (3) and the decision of the Supreme Court in Resham Singh Pyara Singh vs. Abdul Satar (4) and New Kernilworth Hotel (P) Ltd. vs. Orissa State Finance Corporation We need not go into the arguments relied on the basis of difference in the language of Cl. 18 of the Letters Patent of Bombay High Court and Cl. 18 of the Rajasthan High Court Ordinance because the point raised before us is exactly covered by the decision in New Kernilworth Hotel's case (supra ). Clause 10 of the Letters Patent applicable to Orissa High has been reproduced in paragraph 6 of the judgment. It is substantially the same as Cl. 18 of the Rajasthan High Court Ordinance, 1949. In New Kernilworth Hotel's case (supra) the Supreme Court has laid down that the bar of sub-sec. (2) of Sec. 104 would operate against the provisions of Cl. 10 of the Letters Patent also. This is the view taken by the Division Bench of our High Court also. The right of appeal is a creature of the statute and the statute having expressly prohibited filing of second appeal u/sec. 104 (2) no further right of appeal u/cl. 18 of the Rajasthan High Court Ordinance would be available. When the right of appeal u/o. 43, Rule 1 CPC itself is limited and edged in by the condition that no further appeal would lie no further right to appeal can be claimed. In view of the above, we find that this appeal is not maintainable. This is hereby dismissed as not maintainable. All interim orders stand vacated. @cent = @cent = . ;