HIGH COURT OF RAJASTHAN
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(1.) THIS special appeal has been filed by plaintiff Sampat Raj under Section 18 of the Rajasthan High Court Ordinance end Order 43, Rule 1 (w) of the Code of Civil procedure and is directed against the order of a learned single Judge of this Court dated 31st August, 1966 whereby the learned Judge granted the review application of the defendants-respondents and set aside his previous judgment dated 22nd February, 1966 passed in a second appeal filed by the defendants before this Court.
(2.) LEARNED counsel for the respondents has raised a preliminary objection that the appeal before the D. B. is not maintainable under Section 18 of the Rajasthan High court Ordinance as the appellant has failed to obtain a certificate of fitness under section 18 (2) of the Ordinance from the learned Judge.
(3.) MR. Hasti Mal appearing on behalf of the appellant has urged that the present appeal has been filed by him under Sub-section (1) of Section 18 of the Rajasthan high Court Ordinance read with Order 43 Rule 1 of the Code of Civil Procedure which provides an appeal to the D. B. against, the order of the learned single judge of this Court. He also argued that the learned single Judge, while deciding the review application did not pass the impugned order in the exercise of his appellate jurisdiction but the order under appeal was passed by him in the exercise of his "review jurisdiction" which vested in him by virtue of Order 47 of the Code of Civil Procedure and therefore in these circumstances the provisions of sub-section (2) of Section 18 of the Rajasthan High Court Ordinance cannot be attracted. He further submitted that Sub-section (1) of Section 18 has been couched by the legislature in a very wide term and it permits appeal against every order of a single Judge to a D. B. of the same Court, provided order impugned was not passed by him while deciding an appeal in respect of a decree or order made in the exercise of appellate jurisdiction by a court subordinate to it, and since the order impugned in this appeal was not passed by the learned single Judge in respect of an order and decree of a subordinate court in its appellate jurisdiction, the application of Sub-section (2) of Section 18 of the Ordinance is ruled out.;
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