1. The present Letters Patent Appeal arises out of the judgment in a. O. 26 of 1975 decided by the Single Judge of this court Palshikar J. as he then was, rejecting the prayerof the plaintiff-appellantfor appointment of a receover.
2. The forcewhich gave rise to the present Letters Patent Appeal may be stated, in brief, as under:
There is a public trust known awe 'Shri Balaji sansthan' Deulgaon Raja, in Buldana district. On 25-10-1961. The district Judge, Buldana, framed a scheme for administrationof the said trust. Under the scheme presentrespondent No. 1 was appointed as hereditarytrustee and also a Managing. Trustee as per the scheme and in accordance with the directions of the district Judge, Buldana, given to him form time to time. However, it appears that there were complaintsabout the management of the trust, which led to filing of a civil suit by the appellant charity Commissioner, under section ;50 of the Bombay Public Trusts Act, claiming the relief of removalof trustee and appointment of a new trustee and formingof a fresh scheme for managing the trust. The Charity Commissioner filed tow applications one for temporary injuction restringthe managing trustee from interfering wih the management of th etrust, and the second for appointment of a Receiver.
3. Initially, both these applicants were granted by theDistrict Judge, Buldana, but later on the Highcourt transferred the suit from the file of the district Judgeto the file of the Joint district Judge. However, the High Court directed that till the applications are decided afresh by the Joint District Judge, then injuunctionand appointment of Receiver should continue. Ultimately, the joint district Judge by his order dated 12 th March 1975 dismissed both the applications. The Charity Commissioner challenged that order before the High court by wayor appeal againstorder. It was registered as a. O. No. 26 of 1975. The matter came up for hearing before;Palshikar j., as he than was. It appearsthat the only question that was agitated before the single Judge withoutthe appointmentof Receiver. The learned single Judge came to the conclusion that there was not much substance in the application of the charity Commissioner for appointment of a Receiver. The learned single Judge recorded a findingthat the Charity Commissioner was unable to point out any act of misappropriation or wastage of property and hence according to the learned singleJudge the circumstances did not warrant appointment of a Receiver. The learned single Judge also referred ot the Audit Report, which, according to him, clearly shows, that the accountswere properlymaintaned. This he confirmed the order of the Joint district dismissedthe appeal over the charge to the Managing Trustee within a month from the date of the order. It is this order which is being challenged by way of letters patent.
4. It is not necessaryfor us to enter into the merits since the appeal can obe disposed of on a preliminary groundraised by Mr. Kukdey about its tenability. He has invited out attention to the decision of this Court : AIR1983Bom120 , Obedure Rahman v. Ahmedali Bharucha. According to Mr. Kuday, the appeal which was filed before the single Judge of this court was under s. 104 read with O. 43 r. 1 of the code of Civil Procedure (hereinafter referred to as 'the code' for short) and hence the bar of s. 104(2) would apply.
5. Mr. Jaiswal has vehemently argue that the Letters Patent Appeal is maintainable. He has relied onl the decisions : 1SCR187 , Shah Babulal Khimji v. Jayaben D. Kania, Mohindra applyco.) According to Mr. Jaiswal, letters Patent is a Special Law which is not controlledby the provisions of the code and, therefore, the bar of section 104(2) would not applythe Letters Parent Appeals. Mr. Kukdey has heavily relied on the decision reported in AIR 1981 SC 1979 (cited supra). We may reproduce the relevant portions from paras 43 and 79, which, no out view, clinch the issue:
'43. Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed bythe District Judge under O. 43, R. 1 a further appeal under the Letters Patent was not maintaiinable. This view is fully supported by the express language in which clause 15 of the Letters Patent had been couched, as referred to above.'
'79. Thus, after considering the argument of counsel for the parties on the first two limbs of the questions our conclusion are:-
that there is no inconsistentbetween s. 104 read with O. 43 R. 1 and the appeals under the Letters Patent and the application of s. 104 read with O. 43, r. 1 show thatthese provisions would not apply to internal appeals within the High Court.'
6. There is no dispute that the appeal which was filed by the Charity commissioner before the single Judge of this court was filed under s. 104(1) read with O. 43, R. 1 (s) of the Code and, therefore, by nostretch of imagination it can be said that the impugned order is not an order passed iin appeal under s. 104 of the Code. Hence the bar in the matter of appeal as provided under sub-sec. (2) of s. 104 must apply. This issue is already concluded by the decision of the court reported in 1982 Mah LJ 283. In that decision, this court has referred to the decision : 1SCR187 . This court has held-
'As far as clause 15 of the LettersPatent is concerned in our opinion , the provisions of s. 104 are attracted and it is applicable to the letters patent Appeals also. Because the Letters Patent Appeals cannot be said to be an exception ;and override the provisions of the Code of Civil Procedure.'
The decision also refers to clause 37 of the Letters Parent, which provides that the Letters Patent will be guided by Code of Civil Procedure, while making the rules by theHigh court and can be altered by the competent Legislature. It has been further observed that the right of appeal is not inherentright the aggrieved party. It is the creature of stature and, therefore, it can be taken away by statute.
7. Mr. Jaiswal has invited our attention to s. 100A of the Code, which reads as under:--
'Not with standinganything contained in any Letters Patent for any High court or in any other instrument having the force of law of law kor in any other law for the time being in force, where any appeal from an appellantdecree or order is heard and decided by a single Judge of a High court, no further apeal shall lie from the judgment, decision or order of such single judge in such appeal or form any decree passed in such appeal.'
8. Relying on these observations, Mr. Jaiswal has argued that had the Legislature intended to exclude clause 15 of the Letters Patent in regard to s. 104 of the code, then the provisions similar to the ones quoted supra would havebeen added to S. 104 of the Code. In our view, this analogy is whollyirrelevant. Section 100A of the Code bars Letters Patent Appeals against the decision in second appeal. Under the Letters Patent, appeals lie in certain cases against the decision of a single Judge in a second appeal. Such appeals in effect amount to third appeal and, thereforee, section 100a is added so that there shall be no third appeal in any case. tHe same purpose is sought to tbe achieved by sub-section (2) of s. 104 of the Code that in no case an appeal under S. 104 of the code nugatory and such interpretation would be contrary to all canons of interpretation. We see no substance in the appeal and the same is dismissed. It appears that this court while admitting the appeal the granted stay for continuance of Receiver. Since the appeal is being dismissed, the stay order passed by this Court also stands vacated. No order as tocosts.
9. Appeal dismissed.