Judgment

A. ALAGIRISWAMI, J :- The appellant is the widow of one Goverdhandass. The l st respondent is her husband s brother. Goverdhandass and the l st respondent are the sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land in which she was entitled to be joint tenant along with the 1st respondent. She also claimed certain other plots on the ground that they were acquired by Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shared also as co-tenant along with 1st respondent. She succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the other plots.

2. The matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision. Against the order of the Deputy Director, Consolidation, she filed a petition before the High Court of Allahabad under Article 226. The High Court dismissed it in limine but granted a certificate under Article 133 (1) (a) of the Constitution.

3. A preliminary objection was raised on behalf of the 1st respondent that the certificate granted was not valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation. One of the questions on which the decision of this question depends is whether the Deputy Director Consolidation as well as the other two officers exercising power under the U. P. Consolidation of Holdings Act, l953 are Courts. However, in the view we take of the decision of the High Court that it is not a judgment of affirmance this question does not arise. The High Court dismissed the writ petition in limine. It did not go into the merits of the case or decide it even within the limited scope of its powers under Article 226 or 227 of the Constitution even if not as Court of Appeal exercising its powers under Section 96 or 100 of the Code of Civil Procedure. It simply refused to exercise its powers under those Articles of the Constitution. Unless the Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance.

4. It may be useful to consider earlier decision in this connection. In Abdul Majid v. Jawahir Lal ((1904) ILR 36 All 350) (FB) the question of the staring point of limitation for the execution of a decree had to be decided and that question dependend upon the effect of an order of the Privy Council dismissing an appeal for want of prosecution. In that connection the Privy Council observed:

"The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all."

In Karsondas Dharamsey v. Gangabai ( (1907) ILR 32 Bom 108) an order of the High Court refusing to admit an appeal after the period of limitation had expired was held to be not a "decree passed on appeal by the High Court" under Section 595 of the Civil Procedure Code and it was held that there was therefore no jurisdiction to grant leave to appeal therefrom to the Privy Council under cl. (a) of that section. The meaning of the words. "Passed on appeal" were specifically considered and it was observed :

"The meaning of the expression "passed on appeal" has been settled by a line of authorities, which it is right that we should follow : see Sunder Koer v. Chandishwar Prosad Singh ( (1903) ILR 30 Cal 679) and the cases there cited. And applying that interpretation to the circumstances of the case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court."

This Bombay decision was noticed in Promotho Nath Roy v. W. A. Lee (1919) is 33 Cal LJ 128 . But that deci