MODI, J.—This is an application for grant of a certificate for appeal to the Supreme Court against the judgment of a Bench of this Court dated the 14th May, 1965 to which one of us was a party in D. B. Civil Regular First Appeal No. 98 of 1961. This application purports to have been made under Arts.133 (i) (a), (b) and (c) of the Constitution.

2. We may state atonce that so far as the prayer under clauses (b) and (c) of Art. 133 (i) is concerned, it was not pressed before us and, therefore, we shall not say anything about the applicability of these clauses to the present application. The only clause under which the application was argued, and argued strenuously, before us was cl. (a) of Art.133 (i). In support of this prayer, it is urged that the subject-matter relating to the suit,out of which this application arises was valued in the Court of first instance of more than Rs. 20,000/- and that the valuation thereof even at the time of the appeal was likewise so. It was further argued that as this Court had dismissed the petitioners appeal by its judgment in question on the ground of abatement so far as the respondent Ramdan is concerned as his legal representatives had not been brought on the record within the time permitted by law and further on the ground that the appeal against the other respondent Suraj Narain could not be proceeded with in the circumstances of the case, this was not a judgment of affirmance within the meaning of Art. 133, and consequently she was entitled to a certificate for appeal to the Supreme Court as of right. Alternatively, it was argued that even if this Court came to the conclusion that its judgment was one of affirmance, though it was not given on merits of the appeal, a substantial question of law was involved in the decision of this Court against which the present application has been brought and therefore he was entitled to a certificate for appeal also. The application has been opposed by the contesting respondent Suraj Narain on both these grounds.

3. The first question which emerges for consideration in these circumstances is whether the judgment of this Court sought to be appealed against is one of affirmance or not. It has been strongly pressed before us by learned counsel for the petitioner that the judgment in question is not a judgment on the merits of the case, and consequently it could not be said that it is a judgment which affirms the judgment and decree of the court below. In support of this submission, learned counsel placed strong reliance on a Full Bench decision of the Madhya Bharat High Court in Gulabchand Gambhirmal vs. Kudilal Govindram (1). The facts of this case were briefly these. The petitioner there had preferred an appeal to a Special Bench of the Madhya Bharat High Court from the judgment and decree of a Division Bench of that Court. That appeal was dismissed on the ground that it was incompetent for the reason that under sec. 25 of the Madhya Bharat High Court of Judicature Act (No. 8 of 1949) no appeal lay from a decree or an order passed by a Division Bench of the High Court before the coming into force of the High Court Act. Aggrieved by this decision the petitioner applied for a certificate to High Court under Art. 133(1)(a) of the Constitution and it was contended that the requirement as to valuation being fulfilled the judgment of the High Court dismissing the appeal did not affirm the decision of the court immediately below and, therefore, the petitioner was entitled to a certificate for appeal to the Supreme Court without being called upon to show that the proposed appeal involved some substantial question of law. This submission was upheld by the Full Bench and it was held that when an appeal was dismissed on the ground that no appeal lay, it could not possibly be said that the order dismissing the appeal was an order adopting or confirming the decision from which an appeal was sought to be brought. It appears that certain decisions of the Allahabad Flight C

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