1. We think that Section 575 of the Civil Procedure Codedoes not take away the right of appeal which is given by Clause 15 of theLetters Patent.

2. We agree in the view taken by the Bombay High Court inthe case of Appaji Bhivrav v. Shivlal Khubchand I.L.R. 3 Bom. 204 that theeffect of Section 575 of the Code is to supersede the provision in Clause 36 ofthe Letters Patent; that in the event of any disagreement between two Judges ofa Division Bench, the judgment of the senior Judge shall prevail; but (sic),and still that notwithstanding that section, Clause 15 of the Letters Patentremains in full force.

3. One very cogent reason, which has induced us to take thisview, and which seems almost conclusive upon the point is, that if the appealunder Clause 15 of the Charter were taken away, a judgment in this Court of aJudge in a Division Bench, who agreed with the Court below upon a question offact, would be absolutely final. However important the case might be, no appealwould lie to the Privy Council from that judgment. This is clear from Section597 of the Civil Procedure Code, which enacts that "no appeal shall lie toHer Majesty in Council from the judgment of one Judge of the High Court, or ofone Judge of a Division Court, or of two or more Judges of the High Court,where they are equally divided in opinion."

4. It is, therefore, we think, obviously intended that inany such case an appeal should be had in the first instance to a Division Benchof the High Court, before an appeal can be preferred to Her Majesty inCouncil, and such an appeal can only be had under Clause 15 of the Charter.

5. We are of opinion, therefore, that the question referredto us should be answered in the affirmative.

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Gossami Sri Sri Gridhariji Maharaj Tickait vs. Purushotum Gossami and Ors. (05.06.1884 - CALHC)