M.L. Chaturvedi, J.
1. This is an appeal against an order of a learned Judge of this Court dismissing a first appeal from order filed by the appellant.
2. The appellant filed a suit in the Court of Munsif for partition of certain property. That suit was decreed and the defendant filed an appeal against that decree. Notice was issued on that appeal, and the plaintiff (appellant) entered appearance through a counsel on the date fixed for filing his vakalatnama. The Court then fixed the 2nd March, 1951, for the hearing of the appeal, but as neither the appellant nor his counsel appeared before the Court at the date of hearing the proceedings against him were ex parte.
Judgment was reserved and it was delivered on the 14th March, 1951, allowing the appeal in pArticle Before the Judgment was delivered the appellant had made an application on the 5th March, 1951, that the order directing the proceedings against him to be ex parte be set aside, and on this application an order was passed that it should be put up along with the appeal on the date fixed for delivery of judgment.
The appellant says that on the 14th March, 1951, the learned Munsif first delivered judgment in the appeal and thereafter made an order dismissing the appellant's application for a rehearing. The appellant then filed an appeal against this order on the 14th March, 1951, dismissing his application. This appeal came up for hearing before a learned Judge of this Court, who dismissed it on the ground that the appeal was not maintainable. It is against this order of the learned Judge that this appeal hag been filed.
3. The first question that arises for consideration is whether the order of the learned single Judge was appealable in the absence of any declaration by him that the case was a fit one for appeal. The relevant rule on the point is Rule 6, Chapter VIII of the Rules of this Court; It appears to have been taken from Clause (10) of the Letters Patent of this Court and is worded as follows :
'An appeal shall lie to the 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 Court, and not being an order made in the exercise of revisionai jurisdiction, and not being an order passed or made in the exercise of its power of superintendence, or in the exercise of criminal jurisdiction of one Judge.....'
4. A reading of the above rule would show that an appeal ordinarily lies against the decision of one Judge of this Court, and the exceptions are given in the brackets. One of these exceptions is that the judgment appealed against should not have been passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate Court. It has not been contended that this Court was not acting in the exercise of appellate jurisdiction, and the only contention of the learned counsel for the appellant is that the learned Civil Judge was not acting in the exercise of his appellate jurisdiction.
We do not think this contention is correct According to the learned counsel for the appellant himself, the application that was dismissed was an application made or should be deemed to have been made under Order 41, Rule 21 of the Code of Civil procedure. The heading of Order 41 is 'appeals from original decrees', and it enumerates the powers, duties and the procedure to be followed in cases of appeals filed against decrees. White making an application under Rule 21 aparty asks the Court of appeal to rehear an appeal which was decided by it. There can be no doubt that while hearing the appeal the Court was acting in its appellate jurisdiction and what this application seeks is to have set aside the order passed after hearing the appeal. It has to be made to the appellate Court which heard and decided the appeal ex parte, and the appellate Court is to consider whether its ex parteIorder should be maintained. We think that in exercising the power conferred by Rule 21, Order 41, the Court acts in its appellate jurisdiction Thus the judgment under appeal before us is a judgment passed in the exercise of appellate jurisdiction in respect of an order passed by the Civil Judge in the exercise of his appellate jurisdiction; and the former judgment is not appealable in the absence of a declaration that the case is a fit one for appeal.
5. A similar question arose for consideration, in the case of Jaipal Singh v. Board of Revenue, 1956 Ala LJ 510: (AIR 1956 All 698) (A) before a Division Bench of this Court. The question was whether Rule 170 of the Revenue Manual would apply to the case of a review appEcation filed before the Board of Revenue in connection with a second appeal which the Board had previously disposed of. The Bench held that Rule 170 applied to the decision of the review application, because the review application in a second appeal is heard and decided by the Board in the exercise of its appellate powers. This decision to some extent supports the view that we have taken above. If a review application is heard in the exercise of appellate powers, the same would be the position where an application to rehear the appeal is heard by the appellate Court.
6. The appeal is accordingly dismissed.