P K THOMAS Vs. INDIAN RELIEF BANK LTD

JUDGEMENT

(1.) The petitioner is the appellant in A. S. No. 88 of 1963 on the file of this Court. That appeal is from a decree of the District Court, Quilon, for Rs. 52,000 odd with interest from 1953 and costs; and as such can be heard only by a Division Bench. When the petitioners application under O.41 R.5(1) CPC. for stay of execution of the decree pending the appeal came up for orders before Raman Nayar, J. on December 16, 1964, Mr. Paikaday challenged the jurisdiction of a Single Judge to hear it. The learned Judge overruled the challenge and passed the impugned order granting stay on condition that petitioner deposits at least Rs. 20,000 into the lower court on or before 1-2-1965. This Original Petition, filed under Art.226 and 227 of the Constitution, is to call up the records of the proceedings and quash the order impugned herein, by a writ of certiorari, or such other writ, order or direction, as to this Court seem just and proper and it has been ordered to be placed before a Bench for a preliminary hearing.

(2.) Though we have great doubt on the competency of a court to issue a writ to bring up a judicial order passed by a Judge of the same Court - Lord Goddard has observed in Goonesinha v. O. L. de Krester AIR 1945 PC 83 : It is well settled, and counsel did not seek to argue to the contrary, that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a Judge of that court - we have heard Mr. Paikaday at length on the question of jurisdiction of a Single Judge to hear an interlocutory matter arising in an appeal that can be heard only by a Division Bench. Though counsel contended also that the order is unjust on account of the heaviness of the condition imposed, we are afraid that a judicial order, if passed by a competent court, cannot be challenged in that way under Art.226 and / or 227 of the Constitution.

(3.) S.3 and 4 of the Kerala High Court Act, 1958 (Act V of 1959), so far as they are relevant here, read: