KINHANNA MOOLYA Vs. SADASIVA BHAT

JUDGEMENT

(1.) The appeal is against an order passed by the Vacation Judge of this Court on C. M. P. No. 6361 of 1975 on the file, of this Court in O. S. No. 7 of 1975 on the file of the Munsiff's Court, Kasaragod. C. M. P. No. 1372 of 1975 is under Section 5 of the Limitation Act for condoning the delay in filing the above appeal Though C. M. P. No. 1372 of 1975 alone was posted for hearing today, as a preliminary objection was raised in regard to the maintainability of the appeal itself by Shri K. P. V. B, Ejman, the counsel for the respondents, by agreement of the parties the appeal also was taken up for hearing and disposal along with it.

(2.) Regarding facts leading to the filing of the appeal and the petition for condoning the delay the submission of Shri N. N. Sugunapalan, the counsel for the appellant, could be briefly stated as follows: Under the impugned order, the Vacation Judge of this Court had appointed a Receiver for the properties described in the schedule to the petition. The order was passed ex parte, though the appellant, as defendant in the suit, had entered appearance in the Court of the Munsiff of Kasaragod as early as on 5th February, 1975, and he came to know about it only when the Receiver went to the place for taking possession of the properties. He made an application in this Court for the grant of certified copy of the order; but did not succeed in getting it as he was told that the records had by then been despatched to the Munsiff's Court. He made an application in the Court of the Munsiff, but then also he did not succeed as he was informed that Court could not grant the copy of an order passed by this Court. It is thereafter he filed the appeal along with two petitions (1) C. M. P. No. 1372 of 1975 for condoning the delay in filing the appeal, under Section 5 of the Limitation Act, and (2) C. M. P. No. 1373 of 1975 for a direction to the Munsiff of Kasaragod to grant him a certified copy of the order on C. M. P. No. 6361 of 1975 passed by this Court on 29th April 1975, under Section 151, C. P. C. In the meanwhile on memo No. ] of 1975 filed by the Receiver, the learned Munsiff passed the following order:

(3.) Formulating his objections to the maintainability, Shri Ejman submitted: (1) By and under Section 4 (2) (a) of the Kerala High Court Act, decrees and orders coming under Section 3 of the said Act are excluded from the powers of a Bench of two Judges, and therefore, an order passed by a Single Judge in exercise of the powers under Section 3 (11) of the said Act is not appealable to a Bench of two Judges, and (2) appeal, if any, should be only to the Subordinate Judge of Kasaragod as provided in Section 13 of the Civil Courts Act, inasmuch as the power exercised by the Vacation Judge is that of the Civil Court.