The nature and character of the court's jurisdiction does not depend on whether a particular point had been raised before the lower courts, and the term 'judgment' in S.5(iii) connotes a decision finally determining the rights of parties.

1. The office has taken an objection regarding the maintainability of this appeal under S.5 of the Kerala High Court Act, 1958 referred to as the Act) and the matter has been sent up before court for decision on that point. The Division Bench before whom the matter came up for bearing in the first instance has referred it to a Full Bench.

2. The appeal is sought to be filed against the order passed by a learned single judge of this court dismissing an interlocutory application C. M. P. No. 17769 of 1975 filed by the appellant in Second Appeal No. 669 of 1975. The prayer in that civil miscellaneous petition was for staying the hearing of the second appeal under S.3 of the Kerala Debtors' (Temporary Relief) Act, 1975 (Act 30 of 1975). The learned judge held that S.3 did not apply to the case and that the request for stay could not, therefore, be granted.

3. It is contended before us by counsel for the appellant that since Act 30 of 1975 had come into force only during the pendency of the second appeal and the question of applicability of S.3 of the enactment to the case on hand had been raised by his client for the first time only before the High Court, the decision by the learned single judge on the said point should be regarded as "a judgment or order of a single judge in the exercise of original jurisdiction" and that hence the appeal is maintainable under S.5(i) of the Kerala High Court Act. Alternatively, it is argued that the order sought to be appealed against amounts, in any event, to "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" and that the appeal is, therefore, maintainable under S.5(iii).

4. We are unable to accept either of the above contentions. The order sought to be appealed against has been passed by the learned single judge in an interlocutory application filed in a second appeal. In hearing and disposing of the said application the learned single judge was, obviously, exercising the second appellate jurisdiction of this court. The circumstance that the question raised in the interlocutory application had not been urged before the courts below and that it was raised for the first time only before this court on the basis of a statutory provision enacted during the pendency of the second appeal, does not bring about any alteration in the legal position stated above. The nature and character of the jurisdiction exercised by this court does not depend upon whether any particular point had been raised before the lower courts or was available to he raised there. This court was seized of the appeal in which the interlocutory application was filed only in the exercise of the jurisdiction conferred by S 100 of the Code of Civil Procedure. In hearing and disposing of the civil miscellaneous petition filed in the second appeal this court was acting in the exercise of its second appellate jurisdiction. The contention put forward by the appellant that the order sought to be appealed against is one passed by the learned single judge in the exercise of original jurisdiction and that the appeal is maintainable under clause (i) of S.5 cannot therefore stand.

5. Clause (iii) of S.5 of the Act which is the only other provision relied on by the learned advocate for the appellant, confers a right of appeal against 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". Apart from the fact that an appeal under this clause would lie only if the judge who passed the judgment has certified that the case is a fit one for appeal which has not been done in the present case-we are unable to regard the order refusing to stay the appeal under S.3 of Act 30 of 1975 as constituting a 'judgment' rendered by the learned single judge in the exercise of the second appellate jurisdiction. In our