T.C. Raghavan, Ag.C.J.

1. The appellant filed a petition before the Subordinate Judge, Ottapalam under S.113 of the Code of Civil Procedure requesting him to slate a case and refer to the High Court the question of law whether S.7(3) of the Hindu Succession Act, 1956 was ultra vires the Constitution. The Subordinate Judge dismissed the petition; and thereafter, the appellant filed the petition which has given rise to this appeal before this Court under Art.228 of the Constitution to withdraw the original suit pending before the Subordinate Judge and determine the question of law stated above regarding the interpretation of the Constitution. Madhavan Nair J. dismissed the petition and hence the appeal.

2. The counsel of the contesting respondents has taken a preliminary objection [hat an appeal from such an order of a Single Judge to a Division Bench is not competent under S.5 of the Kerala High Court Act. The contention is that a petition under Art.228 of the Constitution to withdraw a suit or appeal pending before a subordinate court is not an original proceeding coming within S.5 of the High Court Act. The counsel of the appellant has brought to our notice two decisions of