An appeal does not lie against an order passed by a single Judge under Art. 227 of the Constitution in a maintenance proceeding under S. 488 Cr. P. C.

T. U. Mehta, J. :- This appeal is preferred against the judgment and order recorded by our learned brother Mr. Justice Lal sitting singly in C. M. P. (M) No. 26 of the 1973 on 30-11-1973. A preliminary objection is raised on behalf of the respondent No. 1 by her learned Advocate Shri Sud, that this Letters Patent Appeal is not maintainable under Cl. 10 of the Letters Patent constituting the High Court of Judicature at Lahore, dated 21-3-1919. It is an admitted position that these Letters Patent of the Lahore High Court are applicable to the procedure adopted by this Court also.

2. Following are the short facts which constitute the background of this appeal. The respondent No. 1 Ram Piari is the wife of the present appellant Ishwar Singh and she filed an application for maintenance under S. 488 of the Cr. P. C. of 1898. The respondent No. 1 was awarded maintenance in the amount of Rs. 75/- per month. The said order was originally passed by the concerned Nayay Panchayat. Against that order an appeal was preferred to the Full Bench of the Nayay Panchayat but the same was also dismissed on 18-8-1970. Against that order a revision application was preferred to the Divisional Magistrate, Rahru. The appellant failed even in that revision application with the result that the appellant invoked the jurisdiction of this Court under Art. 227 of the Constitution. The learned single Judge who decided this application under Art. 227 of the Constitution dismissed the petition and confirmed the order of maintenance after deciding various contentions which were raised on behalf of the present appellant before him. It is against this order passed by the learned single Judge that the present Letters Patent Appeal is preferred.

3. The preliminary objection which is raised by Shri Sud is twofold viz. (1) According to him the learned single Judge has exercised his jurisdiction in a criminal matter and since appeal arising out of the orders passed in the exercise of criminal jurisdiction is specifically excepted by Cl. 10 of the Latters Patent, this appeal cannot lie. (2) At any rate, even if it is believed that the learned single Judge has not exercised any criminal jurisdiction under Art. 227, he has obviously passed an order in exercise of the power of superintendence under Art. 227 of the Constitution and, therefore, also Letters Patent Appeal against that order is barred by Cl. 10 of the Letters Patent.

4. Clause 10 of the Letters Patent is in the following terms:- "10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore 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 said 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 the provisions of S. 107 of the Government of India Act, or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108 of the Government of India Act, and that notwithstanding anything, hereinbefore provided an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108 of the Government of India Act, made on or after the First day of February, one thousand nine hundred and twenty-nine 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 said High Court where the Judge who passed the Judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our Heirs or Successors in Our or Their Priv