Point of Law: Under Section 3(13)(d), a Single Judge is to hear appeal from an order under Section 104 of Code except for certain orders which are mentioned. The excepted categories of orders passed include an order under clause (d) of Rule 1, Order XLIII of Code.

ORDER :

Ajithkumar, J.

Should an appeal under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908, be heard by a Single Bench or a Division Bench?

2. We thought that the question had a quietus with the decision of this Court in Thaha v. Sumina [2012 (1) KLT 39]. But, the learned counsel appearing for the appellant raked up it by contending that this appeal, which was filed under Order XLIII, Rule 1(j) of the Code is one covered by Section 3(13)(b) of the Kerala High Courts Act, 1958, and therefore, liable to be heard by a Single Bench.

3. Heard the learned Counsel appearing for the appellant and also the learned Counsel appearing for the respondent.

4. The substantive provision creating the right to appeal from orders is Section 104 of the Code. Section 104 reads,-

“104. Orders from which appeal lies.- (1) An appeal shall lie from the following Orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other Orders:-

x x x

(ff) an Order under Section 35A;

(ffa) an Order under section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;

(g) an Order under Section 95;

(h) an Order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any Order made under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any Order specified in clause (ff) save on the ground that no Order, or an Order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any Order passed in appeal under this section.”

5. The appeals provided in clauses (ff) to (h) in subsection (1) of Section 104 are from orders issued under various sections of the Code. Clause (i) of sub-section (1) of Section 104 covers appeals from orders passed under various Rules of different Orders in the first schedule to the Code which are enumerated in Order XLIII Rule 1 of the Code.

6. While right to appeal from various orders is created by virtue of the aforesaid provisions in the Code, the forum is prescribed by the provisions of the Kerala Civil Courts Act, 1957. Precisely, Section 13 of the Civil Courts Act says that all appeals from orders where the amount or value of the subject matter of the suit does not exceed twenty lakh rupees shall lie to the District Court. Meaning thereby, all appeals where value of the subject matter of the suit exceeds Rs.20 lakhs shall lie only to the High Court.

7. It is Section 3 of the High Court Act that describes the powers of a Single Judge. Section 3(13) is the provision concerning appeals. Clauses (b) and (d) govern the appeals from decrees and orders, which read as follows:

“3. Powers of Single Judge.- xx xx

(13) An appeal.-

(a) xx xx

(b) from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed forty lakh rupees;

xx

(d) from an order under Section 104 of the Code of Civil Procedure, 1908, except an order of the kind mentioned in Clause (h) of sub-section (1) of the said section or in Clauses (c), (d) or (j) of Rule 1 of Order XLIII of the First Schedule to the said Code;”

8. An order passed by the Sub Judge, Attingal, in an application filed under the provisions of Order XXI, Rule 90 of the Code is under challenge in this appeal. Such an order is appealable under Order XLIII, Rule 1(j) of the Code.

9. The learned counsel appearing for the appellant would submit that this appeal comes in clause (b) of Subsection (13) of Section 3 of the High Court Act and as the value of the subject matter of the suit in which the impugned order was passed is below Rs.40 lakhs, the appeal shall be heard only by a Single Judge.

10. Registry submitted a note in this regard. Registry submits that an appeal under Orde