1. This is the defendant-mortgagee's appeal under Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949 directed against the judgment of the learned Single Judge of this Court, dismissing the S. B. Civil Misc. Appeal No. 46 of 1970.
2. As the controversy between the parties has been reduced to a narrow compass, only the material facts necessary for the decision of this appeal need to be recorded.
3. Asharafi Lal (deceased) and Narainlal filed a suit in the Court of Civil Judge, Bundi against Durgalal petitioner and his sons as well as against Gopal Lal for redemption of certain properties. The learned Civil Judge by his judgment dated May 16, 1962 passed a preliminary decree for redemption of mortgage in favour of the plaintiffs.
4. Aggrieved with the aforesaid judgment and decree the defendant Durgalal and his sons preferred an appeal in the Court of District Judge, Kota. During the pendency of the appeal the plaintiff Asharafi Lal (respondent in that appeal) died on April 6, 1966. On April 19, 1966 the appellant submitted an application for adjournment of the case in order to bring the legal representatives on record. The learned Judge adjourned the appeal for further proceedings on July 14, 1966. The defendant-appellant failed to submit an application for bringing on record the legal representatives of the deceased Asharafilal within time. The appeal, therefore, abated on the expiry of 90 days i. e. on July 6, 1966. On July 14, 1966 the defendant-appellant submitted an application with the prayer that the two sons of Asharafi Lal viz. Hariram and Dr. Shivram be brought on record. This application was contested by Hariram and Dr. Shivram on the ground of limitation. The learned District Judge by his order dated October 27, 1966 dismissed the application as time-barred. He further observed that as the interest of the deceased-respondent in the decree was joint and indivisible and was not separate from the interest of the rest of the respondents, it was impossible to proceed with the appeal and so dismissed the appeal. Thereafter, on November 2, 1966 the defendant submitted an application under Order 22, Rule 9, C. P. C. for setting aside the abatement. This application also did not find favour with the learned District Judge, and the same was dismissed by his order dated March 9, 1970.
5. Being aggrieved with the above mentioned order of the learned District Judge, Kota refusing to set aside the abatement of the appeal, the defendant filed an appeal bearing S. B. Civil Misc. Appeal No. 46 of 1970 before this Court which came up for decision before Hon'ble Modi J., who by his judgment dated May 7, 1973 dismissed the appeal.
6. The aggrieved defendant-mortgagee has come up in special appeal under Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949 before this Court. A preliminary objection has been raised by the learned counsel for the respondent-mortgagors as to the maintainability of the appeal. His contention is that the order of the District Judge refusing to set aside the abatement was passed in exercise of appellate jurisdiction by the learned District Judge, and an appeal against that order before the learned Single Judge of this Court was an appeal covered by Section 18 (2) of the Rajasthan High Court Ordinance, 1949 and unless the learned single Judge himself declared the case to be a fit one for appeal no appeal is maintainable.
7. Mr. Kasliwal, learned counsel for the appellant has vehemently contested the objection. His submission is that the order refusing to set aside the abatement of the appeal was passed by the learned District Judge in exercise of his original jurisdiction in respect of Civil Misc. Application filed under Order 22, Rule 9, C. P. C and the impugned judgment has been rendered by the Court in an appeal under Order 43, Rule 1 (k), C. P. C., and as such the present appeal is maintainable.
8. In order to appreciate the rival contentions of the parties, let us read Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949:--
'18. Appeal to the High Court from Judges of the Court-
(1) 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 Section 43 or in the exercise of criminal jurisdiction of one Judge of the High Court.
2. Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made 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 where the Judge who passed the judgment declares that the case is a fit one for appeal.'
9. Admittedly, no certificate of fitness having been granted under Section 18 (2) all that we are called upon to consider is whether the judgment under appeal passed by the learned Civil Judge in exercise of an appellate jurisdiction was rendered in respect of a decree or order passed in exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court. Our answer to the question is in the affirmative. Just as accepting an appeal or refusing to accept an appeal is an order in appeal so also refusing to set aside the abatement of an appeal is an order passed in exercise of the appellate jurisdiction. Reference may be made to Harbans Singh v. Trust Committee AIR 1972 Madh Pra 61. While interpreting Clause 10 of the Madhya Pradesh Letters Patent which is pari materia to Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949, a Division Bench of the Madhya Pradesh High Court held that a Letters Patent appeal against an order of a single Judge dismissing an appeal against an order of the District Judge refusing to record a compromise under Order 23, Rule 3, Civil Procedure Code, on an application filed before him in a pending appeal is not competent unless leave of the single Judge had been obtained as required under Clause 10.
10. Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949 came up for interpretation before a Division Bench of this Court presided by Hon'ble Sarjoo Prasad C. J. in Sohanlal v. Laxmilal 1960 Raj LW 256 and it was held as under:--
'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 Section 18 Clause (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.'
11. The same was reiterated subsequently by a Division Bench of this Court in Manager Sasta Sahitya Press Ltd. v. Ram pal 1974 Raj LW 492 = (AIR 1975 Raj 20) On the facts of the case in hand, it is not possible to say that the application dated November 2, 1966 for setting aside the abatment of the appeal was made invoking the exercise of original jurisdiction. Although the appeal before the learned Single fudge, out of which the impugned judgment arises, was registered as Miscellaneous Appeal filed under Order 43, Rule 1 (k) Civil Procedure Code yet the appellate jurisdiction of this Court was being invoked and exercised in respect of an order which was itself made in exercise of appellate jurisdiction by the Court subject to the superintendence of his Court. Consequently, the judgment against which the appeal is filed is clearly hit by the exception provided under Section 18 (1) of the Ordinance No. 15 of 1949.
12. Admittedly, there is no certificate of the learned Single Judge, who passed the impugned judgment, allowing the appellant to prefer an appeal against the judgment under appeal. Therefore, the appeal fails.
13. We uphold the preliminary objection that this appeal is not maintainable This appeal is accordingly dismissed. In the facts and circumstances of this case the parties will bear their own costs.
14. Whatever amount has been deposited by the appellant in pursuance of the order passed by this Court on February 13, 1976 that amount shall be paid to the respondents.