FR ABRAHAM MATHEWS Vs. ILLANI PILLAI

JUDGEMENT

(1.) The question raised herein is as to whether under S.5(ii) of the Kerala High Court Act, 1958 a further appeal would lie to a Division Bench of this Court from a decision of a Single Judge disposing of a Civil Miscellaneous Appeal preferred under S.104 of the Code of Civil Procedure, 1908

(2.) S.5 of the High Court Act, 1958 reads:

(3.) The order which was under appeal before the learned Single Judge is one passed by the 1st Additional District Judge, Ernakulam in exercise of his original jurisdiction, and the judgment of the learned Single Judge in appeal is one made by him in exercise of his appellate jurisdiction Therefore the requirements of S.5(ii) of the High Court Act 1958 are satisfied. However we are afraid that this provision is of no avail to the party aggrieved by the judgment in the civil miscellaneous appeal. This is so in view of. sub-s.2 of S.104 of the Code. The appeal, was preferred before the learned Single Judge under S.104 of the Code of Civil Procedure, 1908 which provided for an appeal from the orders specified therein Sub-s.(2) of S 104 provides that no appeal shall lie from any order passed in appeal under sub-s.(1) of S.104.