The main legal point established in the judgment is that the provisions of S.5 (ii) of the Kerala High Court Act, 1958, S.104 of the Code of Civil Procedure, 1908, and S.100A in the Code were interpreted to conclude that no further appeal lies from the decision of the learned single Judge of the Court in a civil miscellaneous appeal filed under S.104 of the Code.

1. The question raised herein is as to whether under S 5 (ii) of the Kerala High Court Act, 1958 a further appeal would lie to a Division Bench of this Court from a decision of a Single Judge disposing of a Civil Miscellaneous Appeal preferred under S.104 of the Code of Civil Procedure, 1908

2. S.5 of the High Court Act, 1958 reads:

"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 juris diction; 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; or

(iii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passed such judgment certifies that the case is a fit one for appeal."

3. The order which was under appeal before the learned Single Judge is one passed by the 1st Additional District Judge, Ernakulam in exercise of his original jurisdiction, and the judgment of the learned Single Judge in appeal is one made by him in exercise of his appellate jurisdiction Therefore the requirements of S.5 (ii) of the High Court Act 1958 are satisfied. However we are afraid that this provision is of no avail to the party aggrieved by the judgment in the civil miscellaneous appeal. This is so in view of. sub-section 2 of S.104 of the Code. The appeal, was preferred before the learned Single Judge under S.104 of the Code of Civil Procedure, 1908 which provided for an appeal from the orders specified therein Sub-section (2) of S 104 provides that no appeal shall lie from any order passed in appeal under sub-section (1) of S.104.

4. The learned Counsel for the appellant relies on S.4 of the Code of Civil Procedure, 1908. Under that section in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. The submission is that the provision in S.5 (ii) of the Kerala High Court Act, 1958 is a special or local law in force and that therefore subsection (2) of S 104 in the Code would not take away the right of appeal under S.5 (ii) of that Act. This contention is met by the learned Advocate General, to whom notice was issued, by referring us to S.100A in the Code. That provision reads:

"100A. No further appeal in certain cases:--Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal."

The submission made by the learned Advocate General is that S.4 in the Code is to be read subject to S.100A therein extracted above. It is contended by the learned Advocate General that so read no further appeal shall lie from the judgment, decision or order of a single Judge rendered in an appeal preferred from an order passed by a subordinate court in exercise of its original jurisdiction. According to the learned Advocate General, the appeal, the decision from which no further appeal lies may be one preferred from an "appellate decree" or any order, that is, an order passed by a court in exercise of its appellate or original jurisdiction

5.The question that falls for decision is as to what is the meaning of the expression "where any appeal from an appellate decree or order is heard and decided " in S.100A of the Code are the appeals mentioned in the aforesaid expression appeals from