Judgment B. N. Agraval, J. 1. -this revision application, filed by the plaintiff, is directed against the order dated 14-1-1983 passed by learned Additional district Judge in an appeal filed under Order XLIII, Rule 1 (t) of the Code of civil Procedure (hereinafter referred to as the Code) whereby he has allowed the appeal, set aside the order passed by the learned Additional Subordinate judge dismissing the application under Order XLI, Rule 19 of the Code and remanded the matter to the learned Judge for disposal of the said application after giving opportunity of adducing evidence. 2. Necessary facts for disposal of this application are that the petitioner filed a suit in the court of the learned Munsif. which was decreed by the trial court. Against the decree passed by learned Munsif, a title appeal was prefeered in the court of the learned District Judge, which after admission, was transferred to the court of learned Additional Subordinate Judge for disposal. The said appeal was dismissed for default under Order XLI, Rule 18 of the Code on 30-7-1979, whith was the date fixed for hearing, 88 notices to the respondents could not be served on account of failure of the appellants to take steps for service of the same upon them. Thereupon, an application under Order XLI, Rule of the Code was filed for readmission of the appeal stating therein, inter alia, that one of the appellants Mahanand Singh, who was looking after the pairvi of the appeal, had fallen ill and, as such, he could not attend the court on that date. The learned Additional Subordinate judge dismissed the aforesaid petition and refused to readmit the appeal. The said order was challenged by preferring an appeal before the learned district Judge under Order XLIII, Rule 1 (t) of the Code which, after admission, was transferred to the court of the learned Additional District judge. In the said appeal, an objection was taken on behalf of the present petitioner, who was respondent No.1 there, regarding its maintainability on the ground that the appeal was maintainable only before this Court. In the said appeal, an objection was taken on behalf of the present petitioner, who was respondent No.1 there, regarding its maintainability on the ground that the appeal was maintainable only before this Court. The appellate court overruled the objection regarding maintainability of the appeal, allowed the same after setting aside the order rejecting the petition under Order XLI, Rule 19 of the Code and remanded the matter to the learned Additional Subordinate Judge for disposal of the petition under Order xli, Rule 19 of the Code after giving an opportunity to the applicant before it to adduce evidence, as the said application was disposed of without giving an opportunity of adducing evidence. Hence this application. 3. A learned single Judge of this Court while admitting the revision application having felt that the point involved in this case requires an authoritative pronouncement directed the case to be placed for hearing before a division Bench and, accordingly, this case has been placed before us. 4. Learned counsel appearing on behalf of the petitioner in support of this revision application contended that the impugned order passed by the learned Additional District Judge, allowing the appeal and directing the application under Order XLI, Rule 19 of the Code to be diiposed of on merit after giving an opportunity of adducing evidence, is wholly without jurisdiction as the Learned Additional Subordinate Judge had rejected the petition under Order XLI, Rule 19 of the Code in exercise of appellate jurisdiction, therefore, the appeal was maintainable before this Court only. In my view, the contention is well founded and must be accepted. The learned Additional subordinate Judge rejected the application under Order XLI, Rule 19 of the code against which, undoubtedly, an appeal is provided under Order XLIII, rule 1 (t) of the Code. The simple question is whether against such an order, an appeal would lie before the District Judge or to this Court. 5. It is well-settled that appeal is a creature of statute and lies only before that caurt upon which appellate power is conferred by statute. For deciding the question as to before which court appeal would lie, it will be relevant to refer to the provision of Sec.106 of the Code which reads as follows: "106. 5. It is well-settled that appeal is a creature of statute and lies only before that caurt upon which appellate power is conferred by statute. For deciding the question as to before which court appeal would lie, it will be relevant to refer to the provision of Sec.106 of the Code which reads as follows: "106. What Courts to hear appeals.-Where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in suit in which such order was made, or where such order Is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. " (Emphasis added)The aforesaid section runs into two parts. The first part lays down that where an appeal is allowed against an order, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was passed. The second part provides that if an appealable order has been passed by a court, other than High Court, in exercise of appellate jurisdiction, appeal would lie to the High Court alone and not to any other court. As the power under Order XLI, Rule 19 of the Code is conferred upon an appellate court, an order passed thereunder is undoubtedly and manifestly an order passed in exercise of appellate jurisdiction. In the case of wahidullah and another V/s. Kanhaya Lal, 1. L, R. ,5 Alld.174 (F. B.), a Full bench of the Allahabad High Court held that an order, passed by the learned subordinate Judge exercising appellate powers, directing the plaint to be returned for presentation to the proper court on the ground that the learned munsif had no Jurisdiction to entertain it was appealable and appeal lay to the High Court against that order. In the said case, the Full Bench was dealing with the provisions of Sec.589 of the previous Code, the corresponding provision of which in the present Code is Sec.106. Sec.589 of the previous Code provided that "when an order from which appeal is allowed is passed by Court (not being a High Court) in exercise of appellate jurisdiction the appeal lies to the High Court". Sec.589 of the previous Code provided that "when an order from which appeal is allowed is passed by Court (not being a High Court) in exercise of appellate jurisdiction the appeal lies to the High Court". Sec.582 of the previous code, which is corresponding to Sec.107 of the present Code gave the appellate court the same power as the trial court to return a plaint for precentation to the proper court as the court of first instance where the plaint was originally presented. Their Lordships held "if then the powers conferred by Sec.582 enable an appellate court to return a plaint for presentation in the proper Court, it is clear that under Sec.589 the appeal in this case mould lie to this High Court". In that case, the order passed by appellate court returning the plaint for presentation to the proper court was regarded as an order passed in exercise of appellate jurisdiction because the power to pass such order was conferred upon the appellate court by statutory provision contained in Sec.582 of the previous Code. Therefore, I am clearly of the view that the order passed upon an application under Order xli, Rule 19 of the Code must be regarded as an order passed in exercise of appellate jurisdiction. 6. Learned counsel appearing on behalf of the opposite party contended that in view of the provisions of Sec.21 of the Bengal, Agra and assam Civil Courts Act, 1887 (hereinafter referred to as the Act, the district Judge had jurisdiction to hear the appeal against such an order. In my view, it will be necessary to refer to the provisions of Sections 20 and 21 of the Act as amended by Bihar Legislature and in force at the relevant time, the portions of which are quoted hereunder : "20. Appeals from District and Additional Judges.- (I) Save as otherwise provided by any enactment for the time being In forct, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court. " (Emphasis added) "21. Appeals from District and Additional Judges.- (I) Save as otherwise provided by any enactment for the time being In forct, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court. " (Emphasis added) "21. Appeals from Subordinate Judges and Munsifs- (1) Save as aforesaid an appeal from a decree or order of a Subordinate Judge shall lie :- (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made was less than ten thousand rupees, and (b) to the High Court in any other case. (2) Save as aforesaid an appeal from a decree or order of a Munsif shall lie to the District Judge. " (Emphasis added) Sec.20, sub-section (1) provides that save as otherwise provided by any enactment for the time being in force "an appeal from a decree or order of a district Judge or Additional Judge shall He to the High Court. " Under subsection (2) of Sec.21, an appeal shall lie from a decree or order of a munsif to the District Judge. Sub-section (1) of Sec.21 provides that save as aforesaid meaning thereby save as otherwise provided by any enactment for the time being in force, as mentioned in sub-section (1) of Section 20, an appeal from decree or order of a Subordinate Judge shall lie to the district Judge where the value of the original suit or proceeding was less than ten thousand rupees (now sixty thousand rupees) and in case where the valuation exceeded the said limit, the appeal would lie to the High Court. I do not find any non-obstante clause in Sec.21 (1) of the Act. Therefore, the meaning of Sec.21 is that unless otherwise provided by any enactment for the time being in force, against every decree or order passed by a Subordinate judge in a suit, an appeal would lie to the District Judge. I do not find any non-obstante clause in Sec.21 (1) of the Act. Therefore, the meaning of Sec.21 is that unless otherwise provided by any enactment for the time being in force, against every decree or order passed by a Subordinate judge in a suit, an appeal would lie to the District Judge. The Code of Civil Procedure is another enactment for the time being in force and in the latter part of Sec.106 of the Code, contrary provisions have been made conferring appellate powers upon the High Court alone, as such, in a case where order has been passed by a Court other than a High Court in exercise of appellate jurisdiction, an appeal shall lie to the High Court. 7 In this connection, I may refer to the provisions of Sec.22 (1) of the Act which lays down that "a District Judge may transfer to any Subordinate judge under bis administrative control an appeal pending before him from the decrees or orders of Munsif". Obviously, while hearing such an appeal a Subordinate Judge does not exeroiie his original jurisdiction but exercises appellate jurisdiction of District Judge. Whatever order a Subordinate judge passes in such an appeal is an order in exercise of appellate jurisdiction. If an order is passed in an appeal of this nature by a Subordinate judge, granting or refusing to grant injunction or appointing or refusing to appoint a receiver, the same would undoubtedly bo an order passed in the exercise of appellate jurisdiction. 8. This question was considered by a learned single Judge of this Court in the case of Dwarika Prasad Jagnarain V/s. Dr. Shivnandan Sahu (Civil Revision no.1264 of 1979 decided on 26-9-1979) wherein an application under order XLI, Rule 19 of the Code, filed before the learned Subordinate Judge for readmission of the title appeal dismissed by him for default, was rejected and an appeal against the rejection order was entertained and allowed by the learned District Judge. Against the said order when a revision was brought to this Court it was allowed on the ground that appeal was not maintainable before the District Judge against such an order in view of the latter part of Sec.105 of the Code, the language of which is very explicit and unambiguous. In my view the law has been correctly laid down in that case. 9. In my view the law has been correctly laid down in that case. 9. For the foregoing reasons, I hold that where an order is passed by a subordinate Judge in exercise of appellate jurisdiction, an appeal would lie to this Court and not to the District Judge. In the case in band, the learned Subordinate Judge had passed the order in exercise of appellate jurisdiction while rejecting the petition under Order XLI, Rule 19 of the code, at such, appeal lay to this Court alone and not to the District Judge and, consequently, it is held that the learned District Judge had no jurisdiction to entertain the appeal and transfer the same to an Additional District judge who in allowing the appeal exercised jurisdiction not vested in it by law. In my view, Clause (a) of proviso to Sec.115 (1) of the Code is also attracted in the present case as if the impugned order had been made in favour of the petitioner, the same would have finally disposed of the suit. 10. In the result, this application is allowed, the impugned order passed by learned Additional District Judge is set aside and he is directed to return the memorandum of appeal to the appellant before him for presentation before the proper court. In the circumstances of the case, I direct that parties shall hear their own costs. Nagendra Rai, J.-I agree. Civil Revision allowed.