O. H. MOOTHAM, CJ.

( 1 ) THIS is an application for leave to appeal to the Supreme Court from an order of an appellate bench of this Court dated 25-10-1957, dismissing an appeal from an order of the Court on its original side rejecting a petition under Article 226 of the Constitution. It is common ground that the order of this Court involves directly or indirectly a claim respecting property of a value much in excess of Rs. 20,000 and the applicant contends that he is entitled an of right to a certificate under Article 133 (1) of the Constitution. This claim is resisted by the respondents on the ground that as the order of this Court on its appellate side affirmed the decision of the Court on its original side, it is necessary for the Court further to certify that the appeal involves some substantial question of law; and that no such question arises.

( 2 ) NOW Clause (1) of Article 133, so far as is material for the present purpose, reads thus :

"133 (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order. . . . . of a High Court. . . . . if the High Court certifies : (a ). . . . . (b ). . . . . (c ). . . . . and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law. "

It is clear, therefore, that a certificate that the appeal involves a substantial question of law is only necessary when "the judgment, decree or final order appealed from" affirms the decision of the Court immediately below. The judgment, decree or final order appealed from is necessarily the judgment, decree or final order of the High Court, and the conclusion would appear to be irresistible that the phrase "the court immediately below" must refer to a Court which is below the High Court. On the plain reading of the clause it would appear therefore that the case before us is not one to which the concluding words of the clause have any application.

( 3 ) THE provisions of Article 133 (1) of the Constitution are derived from Sections 109 and 110 of the Code of Civil Procedure. That Code assumes the existence of a hierarchy of courts on the basis of Acts such as the Bengal, Agra and Assam Civil Courts Act. In this hierarchy the High court is one court, the functions of which may Be performed by a Judge sitting singly or by a bench of Judges; as the Madras High Court said in Jamna Das v. Sabapathy Chetty, ILR 36 Mad 138 (A), when considering an argument that a particular appeal lay to the original side of the court :

"this argument is based on the assumption that the original side of the High Court is a different court from the Appellate Side. This in our opinion, is quite fallacious. The Court is one, but it exercises both original and appellate jurisdiction. "

Provision for appeals within the High Court is not found in the Code but in its Chapter or its rules, and in those cases in which an appeal is allowed it is invariably from the judgment of one judge of the High Court, When the High Court in such cases exercises its appellate jurisdiction the Judge whose judgment is under appeal is not a Court subordinate to it and his decision cannot be revised under Section 115 of the Code: Debendra Nath Das v. . Bibudhendra mansingh, ILR 43 Cal 90: (AIR 1916 Cal 973) (B ).

( 4 ) THE authorities on the question now being considered are not uniform. In ILR 43 Cal 90: (AIR 1916 Cal 973) (B), the Court of first instance as well as the lower appellate Court had decided adversely to the applicant. On appeal to the High Court a single judge reversed the decree of the lower appellate court. From this judgment there was an appeal to the High Court under Clause 15 of the Chapter, with the result that the judgment of the single Judge was reversed by a Bench of two Judges. "it will thus be seen", said Sir Lawrence Jenkins, C. J. ,

"that the first judgm

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