The Order reads as follows Against an application filed before the executing companyrt for setting aside the companyrt auction which was dismissed, an appeal was filed before the High Court.
Subordinate Judge, Coimbatore which was marked as O.S. No.403 of 1974.
A Letters Patent Appeal thereagainst purported to be in terms of Clause 15 of the Letters Patent of the Madras High Court was filed by the Appellant which was dismissed by a Full Bench of the Madras High Court by a judgment and order dated 22.8.1998 holding that in terms of sub section 2 of Section 104 of the Code, an appeal against an order passed by the Appellate Court under Order XVIII Rule 1 read with Section 104 of the Code, was number maintainable.
To the same effect are two other decisions of this Court in Resham Singh Pyara Singh vs. Abdul Sattar 1996 1 SCC 49 and Vinita M. Khanolkar vs. Pragna M. Pai and Others, 1998 1 SCC 500.
It was submitted that such an Appeal was number maintainable by virtue of Sections 47 and 48 of the Guardians and Wards Act.
5389 90 OF 2002 Delivered by B. SINHA, J N. VARIAVA, J, B. SINHA, J Interpretation of Section 104 of the Code of Civil Procedure for short, the Code vis vis Clause 15 of the Letters Patent of the High Court of Madras is in question in these appeals.
The question was whether such an Appeal was maintainable.
The said suit was decreed on or about 15.4.1976.
That application was rejected.
Against that order an Appeal was preferred to the High Court under Section 39 1 of the Indian Arbitration Act, 1940.
An execution petition was filed by the First Respondent decree holder for executing the said decree.
Because of the importance of the question involved, this Court by an Order dated 9th August, 2001 referred the matter to a larger Bench.
Sections 47 and 48 read as follows Orders appealable.
On the dismissal of the same by the Single Judge, a letters patent appeal was filed.
5385 OF 1998 AND CIVIL APPEAL NOS.
W I T H CIVIL APPEAL NO.
419 of 1979.
In the said execution proceeding for realization of the decretal amount the property belonging to the Appellant herein was put to auction.
The said application was marked as Executive Application No.
A certificate of fitness, however, in terms of Article 133 of the Constitution of India was prayed for by the Appellant and granted by the said Full Bench.
The validity of the said auction came to be questioned by the Appellant by filing an Execution Application on or about 8.10.1979 praying therein for setting aside the companyrt auction sale held on 26.9.1979 in respect of Ginning factory situate at Tirurppur named and styled Sree Krishna Ginning Factory.
From the order judgment of one Judge, a letters patent appeal second appeal was filed before the Division Bench under Clause 10 of the Letters Patent of the Orissa High Court.
In other words, the position was that while the statute provided only for appeals against orders, all other appeals companyld only be against a decree passed by the companyrt companycerned.
Interim reliefs of appointment of Court Receiver and injunction were refused by a single Judge of the High Court.
The said application was dismissed by the Execution Court on 10.10.1985 against which an appeal was preferred by the Appellant which was also dismissed by a learned Single Judge of the Madras High Court by a judgment and order dated 8.10.1990.
An appeal shall lie to the High Court from an order made by a Court, a under section 7, appointing or declaring or refusing to appoint or declare a guardian or b under section 9, sub section 3 , returning an application or c under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian or d under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing companyditions with respect thereto or e under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section or f under section 32, defining, restricting or extending the powers of a guardian or g under section 39, removing a guardian or h under section 40, refusing to discharge a guardian or under section 43, regulating the companyduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order or j under section 44 or section 45, imposing a penalty.
The First Respondent herein filed a suit against the Appellant herein in the Court of II Addl.
BACKGROUND FACTS Although these appeals involve companymon questions of law, the factual matrix of the matter would be numbericed from Civil Appeal No.689 of 1998.
Finality of other orders.
