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Adimali St. Pauls Yakkobaya Suriyani Church Represented by Uttuppu Vs. Ithappiri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 9264 of 1971 in C.M.A. No. 11 of 1971
Judge
Reported inAIR1972Ker217
ActsCode of Civil Procedure (CPC) , 1908 - Sections 104(2); Kerala High Court, 1959 - Sections 2(9), 2(14) and 5
AppellantAdimali St. Pauls Yakkobaya Suriyani Church Represented by Uttuppu
Respondentithappiri
Advocates: K. George Varghese,; Kannanthanam Thomas,; V. Jacob,
DispositionPetition dismissed
Excerpt:
- .....before the division bench, i do not see any reason for granting leave for appeal to the division bench. appeal to the division bench from a decision of the single judge is governed by the provisions of section 5 of the high court act 5 of 1959. appeals are provided from the decision of the single judge under three contingencies, and they are:--(1) against a judgment or order of a single judge in the exercise of original jurisdiction;(2) against a judgment of a single judge in first appeal; and(3) 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.according to the petitioner the present case would fall under the third category. but in my view, it is difficult.....
Judgment:
ORDER

K. Sadasivan, J.

1. The C. M. Appeal was disposed of by this Court by judgment dated 21st June. 1971 (since reported in AIR 1972 Ker 180). The present petitioner who was the appellant in the C. M. Appeal, now prays for leave for filing a further appeal before the Division Bench, I do not see any reason for granting leave for appeal to the Division Bench. Appeal to the Division Bench from a decision of the Single Judge is governed by the provisions of Section 5 of the High Court Act 5 of 1959. Appeals are provided from the decision of the Single Judge under three contingencies, and they are:--

(1) Against a judgment or order of a Single Judge in the exercise of original jurisdiction;

(2) against a judgment of a Single Judge in First Appeal; and

(3) 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.

According to the petitioner the present case would fall under the third category. But in my view, it is difficult to bring the present case under that category. This Court in the C. M. Appeal was dealing with an order of remand passed by the District Judge of Kottayam in A. S. 441 of 1970 on the file of his Court. Under Section 104(2) of the Civil P. C. no appeal lies from an order passed in appeal under that section. So from the judgment of this Court in C. M. A. No. 11 of 1971 no further appeal is provided in the Civil P. C. When that is the position, how could this Court recommend or grant leave for a further appeal to the Division Bench? Learned counsel for the petitioner would however contend that the bar in Section 104(2) can apply only to orders passed in appeal, and not to judgments as is the case here. This contention according to me is devoid of merit. Even though the decision of this Court in the C. M. Appeal is styled a 'judgment' in effect, it is only an order, because it is not followed by a decree. 'Order' is defined in the Civil P. C. as the formal expression of any decision of a civil court which is not a decree. The judgment of this Court in the C. M. Appeal must therefore, be construed as an order only. The C. M. Appeal itself was as indicated already, against an order of the lower appellate court. 'Judgment' only means the reasoning given by the court in support of its decision. Section 2(9) of the Civil P. C. defines 'judgment' as a statement given by the Judge of the grounds of a decree or order. No special sanctity is attached to the judgment, except saying that it embodies the reasons that led the court to its conclusions. Under Section 5 of the High Court Act an appeal falling under the third category is provided only from the judgment in Second Appeal and not from a judgment in C. M. Appeal. The present petition is hence not maintainable and I dismiss it.


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