Koshy, J.

In these cases, questions of law referred to be decided by the Full Bench are:

(i) Whether an appeal will lie against the order of a single Judge passed under section 24 of the Code of Civil Procedure;

(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and

(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.

2. No appeal is specifically provided under the Code of Civil Procedure, 1908 (in short ‘CPC’) against orders passed under section 24. There is also no specific prohibition in CPC against filing of an appeal against such an order. Therefore, appeal can be filed if it is provided under any other law as right of appeal is a creature of Stature. Sections 104 and 105 of CPC prohibit filing appeals except by express provision in the CPC or any other law. Section 5 (i) of the Kerala High Court Act, 1958 provides for appeal from the judgment or order of a single judge in the exercise of original jurisdiction. It need not be a judgment. From the plain terms of the section, if an order is passed by the learned single Judge in original jurisdiction, an appeal will lie. Therefore, at the outset we have to consider whether an order passed under section 24 CPC is in exercise of original jurisdiction. We may extract section 5 of the Kerala High Court Act:

“5. Appeal from judgment or order of Single Judge:- An appeal shall lie to a bench of two Judges from—

(i) a judgment or order of a single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a Subordinate Court.”

Section 24 (1) of CPC reads as follows:

“24. General power of transfer and withdrawal:- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage—

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.”

The above section empower the High Court and District Court to transfer suits or other proceedings from one Subordinate Court to another Subordinate Court competent to try the same or withdraw the same to it and dispose of the same. It can be done at the application of any of the parties. In such cases, due notice and hearing are necessary. It can also be done suo motu. When a suit is transferred or withdrawn suo motu, parties are not entitled to notice.

3. The objection raised regarding maintainability of an appeal from an order passed under section 24 CPC by a single Judge of this Court is that the above order is not passed in original proceedings and it cannot be considered as a judgment or order affecting rights of parties. It is also contended that such orders are mere supervisory or revisional in nature.

4. In P.Ramnatha Aiyer’s Law Lexican, the following meaning is given for the term ‘original jurisdiction’:

“Original jurisdiction: - The phrase ‘original jurisdiction’ means jurisdiction to entertain cases in the first instance, as distinguished from appellate jurisdiction.”

The words order in the exercise of original jurisdiction is generally used in contradistinction to the orders passed in exercise of appellate or revisional jurisdiction. The expression ‘original jurisdiction’ is not defined in the High court Act. In Black’s Law Dictionary, it is given the following me