MOHAMMAD HAJI Vs. AYAMMA

JUDGEMENT

(1.) The office has taken an objection regarding the maintainability of this appeal under S.5 of the Kerala High Court Act, 1958 referred to as the Act) and the matter has been sent up before court for decision on that point. The Division Bench before whom the matter came up for bearing in the first instance has referred it to a Full Bench.

(2.) The appeal is sought to be filed against the order passed by a learned single Judge of this court dismissing an interlocutory application C. M. P. No. 17769 of 1975 filed by the appellant in Second Appeal No. 669 of 1975. The prayer in that civil miscellaneous petition was for staying the hearing of the second appeal under S.3 of the Kerala Debtors' (Temporary Relief) Act, 1975 (Act 30 of 1975). The learned Judge held that S.3 did not apply to the case and that the request for stay could not, therefore, be granted.

(3.) It is contended before us by counsel for the appellant that since Act 30 of 1975 had come into force only during the pendency of the second appeal and the question of applicability of S.3 of the enactment to the case on hand had been raised by his client for the first time only before the High Court, the decision by the learned single Judge on the said point should be regarded as "a judgment or order of a single Judge in the exercise of original jurisdiction'' and that hence the appeal is maintainable under S.5(i) of the Kerala High Court Act. Alternatively, it is argued that the order sought to be appealed against amounts, in any event, to "a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court" and that the appeal is, therefore, maintainable under S.5(iii).