No further appeal lies against interlocutory orders in first appeals as per Section 100A of the CPC and the Rajasthan High Court Rules.

JUDGMENT

1. Heard learned counsel for the appellants.

2. The delay of 23 days in filing the appeal is adequately explained. Accordingly, it is condoned subject to objections, if any, on appearance of the respondents.

3. Learned counsel for the appellants argued the matter on the merits as well.

4. The suit of the appellants for the possession of immovable property was decreed by the Court of first instance whereupon the judgment-debtor preferred a first appeal in the High Court. In the appeal conditional stay order was passed and since the judgment-debtor could not satisfy the conditions, he moved application for extending the time for making the deposits of the mesne profits which application has been allowed by the order impugned dated 24.05.2022.

5. The appellants have preferred this appeal challenging the above order.

6. The office has reported that the appeal is not maintainable.

7. The appeal has been preferred under Rule 134 of the Rajasthan High Court Rules, 1952 (for short 'the Rules of 1952'). The aforesaid rules read as under:-

'134. (i) Appeal to the High Court from Judgment of Judges of the Court:- An appeal shall lie to the High Court from the Judgment or a final order (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 revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court.

(ii) Special appeal. - A person desiring to prefer a special appeal from the judgment of the Single Judge shall present a duly stamped memorandum of appeal within sixty days from the date of such judgment. Where such appeal is presented after the period mentioned above, it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfied the court that he had sufficient cause for non preferring the appeal within the aforesaid time.

The memorandum of appeal shall be drawn-up in accordance with Rules 125, 130 and 131 of this Chapter and shall be accompanied by a certified copy of the judgment or order appealed from alongwith two extra typed copies of the judgment or order.'

8. A simple reading of the aforesaid Rule indicates that it provides for appeal to the High Court from the judgment or the final order of one Judge of the High Court but with certain exceptions namely:

'i) Where the judgment is passed in exercise of appellate jurisdiction in respect of a decree or an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court;

ii) Where the order is made in exercise of revisional jurisdiction; and

iii) Where the sentence or the order passed or made is in exercise of the power of superintendence or in exercise of criminal jurisdiction.'

9. The submission of learned counsel for the petitioners-appellants is that an appeal does not fall within the excepted clause (i) inasmuch as it is not directed against a judgment passed in respect of a decree or order made in exercise of the appellate jurisdiction of the Court subject to the superintendence of the High Court.

10. He has relied upon the decision of the Supreme Court reported in (2001) 6 SCC 158- Chandra Kanta Sharma Vs. Oriental Insurance Company Ltd. & Ors. wherein an identical clause 10 of the Letters Patent of the Patna High Court which is pari materia with Rule 134 of the Rules of 1952 came up for consideration. The Court held that the words 'in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court' are vital and if those words are read together with the earlier part, it becomes clear that the appellate jurisdiction mentioned therein refers to a second appea