RAMUNNY WARIYAR Vs. MALANGAI PARAMESWARA BHATTA
LAWS(KER)-1974-1-5
HIGH COURT OF KERALA
Decided on January 16,1974

RAMUNNY WARIYAR Appellant
VERSUS
MALANGAI PARAMESWARA BHATTA Respondents

JUDGEMENT

- (1.) This appeal is against the judgment of a learned Judge of this court Madhavan Nair, J. in S. A. 1361 of 1966. The judgment was rendered on 10th July 1970. The learned Judge retired on 31st October 1970. On C.M.P. No. 830 of 1971, for leave to appeal to a Division Bench, an order declaring the case fit for appeal under S.5 of the Kerala High Court Act, 1958, was made by Krishna Iyer, J. of this court (as he then was) on 28th January 1971. We are of the opinion that the leave to appeal was not properly granted and therefore this appeal is not competent. S.5 of the Kerala High Court Act reads as follows: "5. Appeal from the judgment or order of single Judge. An appeal shall lie to a Bench of two Judges from - (i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or (ii) a judgment of Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or (iii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by subordinate court, if the Judge who passed such judgment certifies that the case is a fit one for appeal."
(2.) It is plain that only the Judge who passed the judgment can certify that the case is a fit one for appeal. In this case, as the same had not been done by the Judge who passed the judgment, we are of the opinion that the appeal is incompetent. This difficulty in the appeal was very fairly brought to our notice by counsel for the appellant himself. We therefore dismiss the appeal with no order as to costs.;


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