VASUDEVAN NAMBOOTHIRI Vs. NARAYANAN NAMBOODIRI

JUDGEMENT

(1.) The appellant in the proposed appeal is a debtor; and he filed CMP. No. 384 of 1967 to amend the decree passed by the High Court in A. S. No. 82 of 1956 (K) under S.7 of Kerala Act XXXI of 1958. The petition was dismissed by a single Judge; and the appellant questions the correctness of the said order in the proposed appeal. The office has taken the objection that no appeal lies under S.5 of the Kerala High Court Act.

(2.) S.5 of the High Court Act provides for three types of appeals: (1) appeals against judgments or orders of a single Judge in the exercise of original jurisdiction. (2) appeals against judgments of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court and (3) appeals against judgments 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, if the Judge who passes the judgment certifies that the case is a fit one for appeal. In other words, there is an appeal against a judgment or order of a single Judge in the exercise of original jurisdiction; there is an appeal against a judgment of a single Judge in a first appeal; and there is also an appeal against a judgment of a single Judge in a second appeal if the Judge who disposes of the second appeal grants leave or certifies that the case is a fit one for a further appeal. The question for us to consider is whether the order passed by a single Judge in the civil miscellaneous petition for amendment of the decree under S.7 of Act XXXI of 1958 falls within any one of these categories mentioned above.

(3.) The order cannot fall within categories 2 and 3, because it appears fairly clear that the order is not one passed in the exercise of the appellate power or the second appellate power of the single Judge. Can it be said that the order falls under the first category as it is passed in the exercise of the original power of the single Judge To us it appears that an order passed under S.7 of Act XXXI of 1958 is more an original order than an appellate order. It cannot be doubted that an appeal lies against such an order refusing to amend the decree under S.7 of Act XXXI of 1958 (vide Varkey Mathew v. Velayudhan Pillai: 1965 KLT 674 ) If an appeal lies, is the forum a Division Bench of this Court or the Supreme Court And on this question we are of opinion that, since the order passed in the civil miscellaneous petition is in the exercise of the original jurisdiction of the single Judge, the appeal must lie to a Division Bench of this Court under S.5(i) of the High Court Act. Here we may refer to the Full Bench decision of the Madras High Court in K. G. Rangaswami Chettiar and Co. v. K.R Eswaramurthy Goundar ( AIR 1954 Mad. 1053 ). In that case a single Judge passed an order under O.41 R.5 of the Code of Civil Procedure in a first appeal; and the question before the Full Bench was whether such an order was appealable under Clause.15 of the Letters Patent. The Full Bench held that the order would amount to a judgment under Clause.15 of the Letters Patent. Such an order, in our opinion too, may amount to a judgment under clause (ii) or clause (iii) of S.5 of the High Court Act as the order is passed in a first appeal or a second appeal. The further question may then arise whether such an order is appealable without the leave of the single Judge if the order is passed in an interlocutory application in a second appeal. We do not propose to answer these questions in this case; and for the purpose of this case, it is enough if we hold that an order under S.7 of Act XXXI of 1958 is in the nature of an original order And we do so.