A Single Judge has jurisdiction to hear interlocutory matters in appeals, and an application for stay of execution under O. XLI R.5(1) CPC is an interlocutory matter. The Appellate Court in this case is the High Court, not a Bench of two judges.

1. The petitioner is the appellant in A.S. No. 88 of 1963 on the file of this Court. That appeal is from a decree of the District Court, Quilon, for Rs. 52,000 odd with interest from 1953 and costs; and as such can be heard only by a Division Bench. When the petitioner's application under O. XLI R.5(1) CPC. for stay of execution of the decree pending the appeal came up for orders before Raman Nayar, J. on December 16, 1964, Mr. Paikaday challenged the jurisdiction of a Single Judge to hear it. The learned judge over-ruled the challenge and passed the impugned order granting stay "on condition that petitioner deposits at least Rs. 20,000 into the lower court on or before 1-2-1965". This Original Petition, filed under Art.226 and 227 of the Constitution, is "to "call up the records of the proceedings and quash the order impugned herein, by a "writ of certiorari, or such other writ, order or direction, as to this Court seem "just and proper" and it has been ordered to be placed before a Bench for a preliminary hearing.

2. Though we have great doubt on the competency of a court to issue a writ to bring up a judicial order passed by a judge of the same Court - Lord Goddard has observed in Goonesinha v. O.L. de Krester AIR. 1945 P.C. 83: "It is well settled, and counsel did not seek to argue to the contrary, that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a judge of that court" - we have heard Mr. Paikaday at length on the question of jurisdiction of a Single Judge to hear an interlocutory matter arising in an appeal that can be heard only by a Division Bench. Though counsel contended also that the order is unjust on account of the heaviness of the condition imposed, we are afraid that a judicial order, if passed by a competent court, cannot be challenged in that way under Art.226 and/or 227 of the Constitution.

3. S.3 and 4 of the Kerala High Court Act, 1958 (Act V of 1959), so far as they are relevant here, read:

"3. The powers of the High Court in relation to the following matters may be exercised by a Single judge...

(5) Any matter of an interlocutory character in appeals and other proceedings;

(13) An appeal

(a)

(b) from an original decree or order, where the amount or value of the subject-matter of the suit does not exceed ten thousand rupees;

4. The powers of the High Court in relation to the following matters may be exercised by a Bench of two judges...

(1) Any matter in respect of which the powers of the High Court can be exercised by a Single Judge;

(1) An appeal

(2) from a decree or order of a Civil Court, except those coming under S.3."

In regard to appeals the powers of a Single Judge are limited to cases where the amount or value of the subject-matter of the suit is not above Rs. 10,000; but no such limitation is made in regard to interlocutory matters in appeals. Nor is a division made of the power to hear and determine interlocutory matters between Single Judges and Division Benches. The expression "in appeals", without any limitation, must necessarily mean'in all appeals'. The absence of a specific provision on interlocutory matters in S.4 of the Act, that deals with the powers of a Division Bench, only confirms the above construction.

Counsel pointed out that clause (1) of S.4 covers interlocutory matters in appeals, and contended that, to be consistent with clause (5) of S.3, it should be construed to relate to such matters arising in appeals disposable by a Division Bench. But, the very wording of clause (1) of S.4 makes clear that the powers of a Division Bench provided therein are only co-existent with those of a Single Judge. The provision is only that a Bench of two judges can exercise "the powers of the High Court" in relation to "any matter in respect of which the powers of the High Court can be exercised by a Single Judge". In other words, in respect of matters covered by clause (1) of S.4, the powers of a Single Judge and of a Di