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TMI Blog1975 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed certain other plots on the ground that they were acquired by Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shares also as a co-tenant along with 1st respondent. She succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the either plots. The matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision. Against the order of the Deputy Director, Consolidation she filed a petition before the High Court of Allahabad under Article 226. The High, Court dismissed it in liminine but granted a certificate under Article 133 (1) (a) of the Constitution. A prel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dismissing the appeal for-want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore 'he was in the same position as if he had not appealed at all." A, In Karsondas Dharanuey v. Gangabai (1907 ILR 32 Bom. 108) an order of the High Court refusing, to admit an appeal after the period of limitation had expired was held to be not a "decree passed on appeal by the High Court" under s. 595 of the Civil Procedure Code and it was held that there was therefore no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganesh Prasad v. Mt. Makhna (AIR 1948 All. 375) however an order dismissing appeal for default on account of non- prosecution was held to be a decision which affirmed the decision of the Court below. In Gulabchand v. Kudilal (AIR 1952 M.B. 149) it was held that the order of the Court dismissing the Special Appeal on the ground that no appeal lay under s. 25 of the Act was not an order which affirmed the decision of the Court below and it was observed that expression "affirms the decision of the Court immediately below" implies that the Court had dealt judicially with the decision of the Court below and upheld it and Where the Court holds that it has no jurisdiction to entertain an appeal from the decision of the Court below and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 or 227 of the Constitution is not an appeal. it is true that the- right conferred by Article 133 of the Constitution, cannot in any way be curtailed by the provisions of the Code of Civil Procedure and Article 133 does not speak of judgment, decree or final order passed on appeal by the High Court. All the earlier decisions of the various Courts referred to above are based on the interpretation of ss. 109 and-110 of the Code of Civil Procedure. An order of a High Court in a petition tinder Article 226 or 227 would be an order in a civil proceeding of a High Court and so fall under Article 133. Where a High Court refuses to entertain such a proceeding the same considerations that were applied in the earlier cases where an appeal was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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