SOHANLAL Vs. LAXMILAL

JUDGEMENT

(1.) THIS is an appeal under sec. 18 of the Rajasthan High Court Ordinance (No. XV of 1949), directed against an order dated 14th May, 1958 passed by Modi J. rejecting an application for restoration of an appeal from appellate decree which was dismissed for default by an order of this Court dated 30th January, 1958.

(2.) A preliminary objection has been raised to the maintainability of this appeal. Mr. Nauratanmal, who appears in support of the appeal, claims that the appeal is competent under Cl. (1) of sec. 18 of the Ordinance aforesaid. It is quite clear from the language of the clause itself that no such-appeal would lie. Cl. (1) runs as follows: - "an appeal shall lie to the High Court, from the judgment (not being a judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Sec. 43 or in the exercise of Criminal jurisdiction of one Judge of the High Court. " It follows from the above that an appeal does not lie from a judgment of a Single Judge passed in respect of a decree or order made in the exercise of appellate jurisdiction by the court below which was subject to the superintendence of this Court. The appellant con-tends that the order in question was not passed in the exercise of appellate jurisdiction by the Single Judge in respect of any decree or order made on appeal by the court below. This argument on the face of it is quite untenable. The application was made for restoration of the appeal which had been dismissed for default, whereby this Court had affirmed the decree of the court below, which was passed by that court as a court of appeal. The appellant' sought to have that appeal restored and the court refused to restore the appeal in question. The order, therefore, has been made manifestly in the exercise of the appellate jurisdiction of this Court in connection with the second appeal in question. Reliance has been placed on behalf of the appellant on the case of Firm Shaw Hari Dial & Sons, Madras through H. R. Bagdy vs. Messrs Sohna Mal Beli Ram through Arjan Dass (1) which is a Full Bench decision of the Lahore High Court as it then was. The case in question is clearly distinguishable. That was a case where the trial court had held that it had no jurisdiction to try the suit and consequently returned the plaint for presentation to the proper court. An appeal was carried against that order and the learned Single Judge, who heard the appeal, was in agreement with the order of the trial court and dismissed the appeal. It was against that order or judgment that the Letters Patent appeal was preferred under clause 10 of the Letters Patent. The appeal was, therefore, in the exercise of the appellate jurisdiction of the Court, but in connection with an order which was passed by the trial court itself. In other words, it was a case of a first appeal having been presented against the order of the trial court which had been dismissed by the Single Judge and in such a case, it was held that an appeal lay to the Division Bench under clause 10 of the Letters Patent. The case here is entirely different. Here the order of dismissal was passed in connection with the appellate decree of the court below and the application for restoration which has been refused by the order in question now was in connection with that appeal. Therefore, the order against which this appeal has been presented is clearly hit by the exception provided under sec. 18 Cl. (1) of the Act. There being no certificate of the Judge allowing the appellant to prefer an appeal against the order in question, it cannot be covered by clause (2) of that section either. The result is that the appeal fails and is dismissed with costs. .