(1) Two questions have been referred to the Full Bench for its opinion. These are:

(1) Whether an appeal under clause 12 of the Letters Patent against a judgment of a Single Judge, passed by him in first appeal against a decree or order of subordinate court will be competent without the case being declared to be a fit one for appeal by the Single Judge?

(2) Whether the view taken by this Court in Satya Jyoti Vs. Maj. R D. Jyoti Letters Patent Appeal No. : 3 of 1978 decided on 14-3-1979 is correct ?

(2) The facts leading to the reference have been set out in detail in the order of reference. A decree u/s 10 of the Hindu Marriage Act, 1955, was passed against the appellant by District Judge, Jammu. Appeal taken from it was also dismissed by a learned Single Judge of this Court The appellant then filed an appeal under Cl. 12 of the Letters Patent against the judgment of the learned Single Judge An objection was taken on behalf of the respondent that the learned Single Judge not having declared the case to be a fit one for appeal in terms of Cl. 12 the appeal was not maintainable. Reliance was placed upon a Division Bench Judgment of this Court in Satya Jyoti Vs. Maj R, D. Jyoti, Letters Patent Appeal No: 3 of 1978 decided on 14-3-1979 which Prima facie supported the aforesaid objection. The Division Bench, being of the opinion, that no declaration in terms of Cl. 12 was necessary where a Single Judge of the High Court had decided a first appeal, has posed the aforesaid questions to be answered by a larger bench.

(3) Clause 12 of the Letters Patent (Jammu and Kashmir) which is the subject of all polemice in the case, reads as under: -

"12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the Judgment (not being a judgment passed in 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 powers of superintendence) of one Judge of the said High Court or one Judge of any Division Court 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, consistently with the provisions of the Civil Procedure Code, 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 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 the judges of the said High court or of such Division Court shall be to Us Our Heirs or successors and be heard by Our Board of Judicial Advisers for report to Us.

(4) On a careful reading of this clause the following conclusions can be easily drawn :-

(1) An appeal shall lie from every judgment of one Judge of the High Court or of one Judge of and Division Court, if;

(a) the same is not passed by him in appeal against a decree or order of a Court subject to the superintendence of the High court, passed by it in exercise of its appellate jurisdiction ; and

(b) the same is not passed in the civil original jurisdiction of the High Court.

(2) An appeal shall also from a judgment of one judge of the High Court or of one judge of any Division Court, passed by him in appeal against a decree or order of a Court subject to the superintendence of the High Court, passed by it in exercise of its appellate jurisdiction, provided the Judge declares that the case is a fit one for a further appeal to a larger bench, but not otherwise.

(3) No appeal shall lie against any sentence passed by a Judge of the High Court or by a Judge of a Division Court, nor shall an appeal lie against