An appeal from an order passed by a single Judge in the review of a second appeal is not maintainable before a Division Bench without obtaining a certificate of fitness under Section 18 (2) of the Rajasthan High Court Ordinance.

TYAGI, J.

( 1 ) THIS special appeal has been filed by plaintiff Sampat Raj under Section 18 of the Rajasthan High Court Ordinance end Order 43, Rule 1 (w) of the Code of Civil procedure and is directed against the order of a learned single Judge of this Court dated 31st August, 1966 whereby the learned Judge granted the review application of the defendants-respondents and set aside his previous judgment dated 22nd February, 1966 passed in a second appeal filed by the defendants before this Court.

( 2 ) LEARNED counsel for the respondents has raised a preliminary objection that the appeal before the D. B. is not maintainable under Section 18 of the Rajasthan High court Ordinance as the appellant has failed to obtain a certificate of fitness under section 18 (2) of the Ordinance from the learned Judge.

( 3 ) MR. Hasti Mal appearing on behalf of the appellant has urged that the present appeal has been filed by him under Sub-section (1) of Section 18 of the Rajasthan high Court Ordinance read with Order 43 Rule 1 of the Code of Civil Procedure which provides an appeal to the D. B. against, the order of the learned single judge of this Court. He also argued that the learned single Judge, while deciding the review application did not pass the impugned order in the exercise of his appellate jurisdiction but the order under appeal was passed by him in the exercise of his "review jurisdiction" which vested in him by virtue of Order 47 of the Code of Civil Procedure and therefore in these circumstances the provisions of sub-section (2) of Section 18 of the Rajasthan High Court Ordinance cannot be attracted. He further submitted that Sub-section (1) of Section 18 has been couched by the legislature in a very wide term and it permits appeal against every order of a single Judge to a D. B. of the same Court, provided order impugned was not passed by him while deciding an appeal in respect of a decree or order made in the exercise of appellate jurisdiction by a court subordinate to it, and since the order impugned in this appeal was not passed by the learned single Judge in respect of an order and decree of a subordinate court in its appellate jurisdiction, the application of Sub-section (2) of Section 18 of the Ordinance is ruled out.

( 4 ) MR. Kalla appearing for the respondents urged that the impugned order passed by the learned single Judge while reviewing his own judgment in a second appeal cannot be said to have been made by him in original jurisdiction or in the first appellate jurisdiction, but as the review was of an order which was passed by the learned single Judge in the second appeal it shall be said that he passed the impugned order in respect of a decree or order passed by the subordinate court in its appellate jurisdiction and hence the provisions of Sub-section (2) of Section 18 of the Rajasthan High Court Ordinance are clearly attracted. In these circumstances his contention is that without obtaining necessary certificate under section 18 (2) of the Ordinance from the learned single Judge an appeal was not maintainable before a Division Bench.

( 5 ) THESE rival contentions give rise to an important question relating to the interpretation of Section 18 of the Rajasthan High Court Ordinance. It would, therefore, be convenient to reproduce the provisions of this section here:

"appeal to the High Court from Judges of the Court. (1) An appeal shall lie to the High Court, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of re-visional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under section 43 or in the exercise of criminal jurisdiction of one Judge of the High Court. (2) Notwithstanding anything hereinbefore provided, an appeal sh