DWARKA PRASAD, J.— This is a special appeal under section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as the Ordinance), against the order of the learned Single Judge dated 18 th Dec. 1979 made on a Civil Miscellaneous Stay Petition filed under Order 41 rule 5 C.P.C. in a civil first appeal

2. The plaintiff appellant obtained a decree for a sum of Rs. 26,277/43 p. on 9th October, 1979 from the court of Additional District Judge No 4, Jaipur City Aggrieved against the aforesaid decree the defendant filed a first appeal in this court and filed a stay application under Order 41 rule 5 C.P.C. along with the appeal for staying the execution of the decree passed by the trial Court. Learned Single Judge heard the parties on the stay application and passed the following order:

"Heard learned counsel for the parties. Out of the decretal amount, appellant would pay an amount of Rs. 12,000/- to the respondent and for the rest of the amount would submit a solvent surety to the satisfaction of the Additional District and Sessions Judge No. 4, Jaipur City, Jaipur. Respondent would submit a solvent surety for restitution while withdrawing the amount of Rs. 12,000/-. The period of three months is allowed for making payment."

3. Aggrieved against the aforesaid order the plaintiff has now filed the present appeal before the Division Bench under section 18 of the Ordinance. The Office raised an objection that special appeal does not lie under section 18 of the Ordinance against the impugned order of the learned Single Judge passed on a stay application filed under Order 41 rule 5 C.P.C. In these circumstances the case has been listed before the Court and we have heard the learned counsel for the appellant on the objection raised by the office.

4. Mr. Patodia, learned counsel appearing for the plaintiff appellant has contended that an appeal lies to the Division Bench against a judgment passed by the learned Single Judge under sub-section (1) of Section 18 of the Ordinance. It is contended that the impugned order passed by the learned Single Judge falls within the meaning of word judgment. Reliance in this connection is placed on Asrumati Debi vs. Kumar Rupendra Deb Raikot(l), and K.G. Rangaswami Chettiar and Co. vs. K.R. Eswaramurthy Goundar (2).

5. Learned counsel also submitted that though there are two decisions of this Court in Rajputana Cold Storage and Refrigeration Co. Ltd. vs. Rani Ajitjunverba (3), and State vs. Hindo Open Sugar Mills (4). These two cases are distinguishable.

6. Before considering the arguments of the learned counsel for the appellant it would be proper to reproduce S. 18 of the Ordinance:

"S. 18—Appeal to the High Court from Judges of the Court-(l)-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 revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Sec. 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court.

(2)- Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made 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 where the Judge who passed the judgment declares that the case is a fit one for appeal."

7. There is no controversy that Ss. (2) of S. 18 of the Ordinance does not apply in the present case. Thus, we have to determine whether an appeal lies to the Division Bench against the impugned order of the learned Single Judge under sub-s. (1) of S. 18 and whether such order amounts to a judgment.

8. We need not dilate much on the ful

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