ORDER : 1. The father of the petitioner was the plaintiff in a suit on the file of a Sub Judge. He filed an application under Section 340 Cr.PC which was dismissed by the learned Sub Judge. He filed an appeal under Section 341 Cr.PC. During the pendency of the appeal he died. The petitioner filed Annexure B application to permit him to prosecute the appeal. The appellate court did not pass any orders on it. But in the appeal it recorded: “Appellant died on 27.01.2018. So (see) the memo filed. No legal heirs impleaded. Hence appeal abated (sic). The order is sought to be set aside.” 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Though notice was issued to the first respondent, he has not entered appearance. 3. The petitioner's father filed the application under Section 340 CrPC. It was taken on the file of the Sub Judge as an interlocutory application. The appeal against the order passed in it was taken on the file of the learned District Judge as a Civil Miscellaneous Appeal. The order passed in it is challenged in this Petition filed under Section 482 CrPC. The Registry of this Court doubted the maintainability of the Petition under Section 482 of the Code. The Petition was taken on file subject to the direction that its maintainability would be heard later. 4. Shri Vipin Narayan, learned counsel for the petitioner submits that the proceedings under 340 of the Code is a criminal proceeding and the application filed under that provision should have been numbered as a Criminal Miscellaneous Petition and the appeal challenging the order passed in it should have been considered a Criminal Appeal before the District Court. Learned counsel submits that merely because the proceedings arose from a civil case, it cannot be considered a Civil Appeal, it should have been registered as a Criminal Appeal and being an appeal under Cr.PC it will not abate on the death of the applicant since there is no provision in the Code for abatement of such appeal. He has referred me to Section 394 of the Code. He further submits that the petition filed under Section 482 of the Code is maintainable. 5. He has referred me to Section 394 of the Code. He further submits that the petition filed under Section 482 of the Code is maintainable. 5. Shri Vipin Narayan has brought to my notice the provision in Rule 66 of the Criminal Rules of the practice, which is extracted below: “Every application under Section 340 of the Code shall be registered as a Criminal Miscellaneous Petition.” 6. To answer the question involved in the case the provisions in Sections 195, 340 and 341 of the Criminal Procedure Code should be read together. For a Magistrate to take cognizance of the offences referred to in Section 195 CrPC one of which falls under Section 193 IPC, a complaint by the Court in which the proceedings in relation to which the offence was committed were pending is mandatory. The offence under Section 193 IPC finds place in Clause (b)(i) in Sub-Section (1) in Section 195 CrPC. 7. Section 340 Cr.PC prescribes the procedure to be followed in the cases mentioned in Section 195. The application should be filed in the court in which the proceedings in relation to which the offence was committed were pending. Sub-Section (4) in Section (340) provides that in this Section Court has the same meaning as in Section 195. 8. Section 341 of the Code reads as follows:- “(1) Any person on whose application any Court other than a High Court has refused to make a complaint under Sub-Section (1) or Sub-Section (2) of Section 340, or against whom such a complaint has been made by such court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of the section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under Section 340, and if it makes such complaint, the provisions of that Section shall apply accordingly. (2) An order under this Section, and subject to any such order, an order under Section 340, shall be final, and shall not be subject to revision.” 9. (2) An order under this Section, and subject to any such order, an order under Section 340, shall be final, and shall not be subject to revision.” 9. In M.S. Sheriff and Another vs. State of Madras and Others, AIR 1954 SC 397 an application was filed under Section 475 CrPC (Code of 1898) requesting the High Court to prosecute two Police Officers for perjury under Section 193 IPC. The facts of the case are irrelevant. The question raised before the Supreme Court was in which court an appeal should be filed against the order passed by the (Division Bench) High Court. The court took notice of the relevant portion of the provision (Section 476B of the Old Code) relating to appeal which read as follows: “Any person............a complaint has been made” may appeal to the Court within the meaning of Section 195(3) (old Code).” Section 195(3) read thus: “For the purpose of this Section, Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decree or sentences of such former court.........” This is identical to the provision in Section 195(4) of the Code of 1973. The Supreme Court observed:- “Before we can apply the definition we have first to see whether there is a class of decrees or sentences in the Court under consideration which are at all open to appeal. If there are not, the matter ends and there is no right to appeal under Section 476B. If there are, then we have to see to which those appeals will ordinarily lie.” 10. Kuldip Singh vs. State of Punjab and Another, AIR 1956 SC 391 is a case which arose from an order passed by a Subordinate Judge (of the First Class) in an application filed in a suit requesting him to file a complaint against a party who allegedly committed the offence under Section 193 IPC. Under the Punjab Courts Act Courts of District Judge and Additional District Judge were two classes of Courts. The question considered by the Supreme Court was which of those two Courts had the jurisdiction to entertain the appeal filed against the order passed by the Subordinate Judge. After referring to the provisions in the Criminal Procedure Code and the Punjab Courts Act the Court held: “........Court competent to exercise these powers is the Court to which appeals from the Original Court “ordinarily” lie. After referring to the provisions in the Criminal Procedure Code and the Punjab Courts Act the Court held: “........Court competent to exercise these powers is the Court to which appeals from the Original Court “ordinarily” lie. That Court in the present case was the Court of the District Judge and not the Court of the Additional Judge.” 11. The above two decisions were rendered by a five Judge Bench of the Supreme Court. 12. In Harishankar vs. Khyalichandra and Another, 1991 Crl. L.J. 2153 the question whether the appeal provided under Section 341 CrPC challenging the decision of a Civil Court would lie to the court exercising appellate powers under the Criminal Procedure Code or to the Court exercising appellate power under the Civil Courts Act came up for consideration before the High Court of Madhya Pradesh. The learned Judge referred to the decisions of the Madhya Pradesh High Court in Bishambhardas and Others vs. Mukta, AIR 1942 Nagpur 73 , Ganpatlal vs. Layakchand, 1980 Jab LJ 146, the Full Bench of the Patna High Court in Deonandan Singh vs. Ramlakhan Singh, AIR 1948 Patna 225 and the five judge bench decisions of the Supreme Court referred to above and held that an order passed by a civil court can be challenged only in an appellate Court established under the Civil Courts Act and not in a court exercising powers under the Criminal Procedure Code. 13. In Jose Joseph vs. Syndicate Bank, 1997 (1) KLT 320 the impugned order was passed by a Subordinate Judge. The question that fell for consideration was whether the District Court or the High Court had the jurisdiction to entertain the appeal. The Division Bench held that in view of the provisions in Sub-Section (4) of Section 195 CrPC the appeal under Section 341 CrPC is maintainable in District Court. 14. The question arising for consideration in this proceedings was considered by High Court of Rajasthan in Subhash vs. State of Rajasthan, 2014 KHC 2125. It held: “When a Civil Court refuses to file any complaint under Section 340 CrPC read with Section 195 CrPC, an appeal by the aggrieved party can be filed only to the appellate court in the civil side and not to the appel late court in the criminal side”. 15. It held: “When a Civil Court refuses to file any complaint under Section 340 CrPC read with Section 195 CrPC, an appeal by the aggrieved party can be filed only to the appellate court in the civil side and not to the appel late court in the criminal side”. 15. A learned Single Judge of this court also has had the occasion to consider the question in Rocky vs. Pavunni, 2015 (1) KLT 547 . The order passed by a Munsiff Court was challenged in appeal filed in Sessions Court. The Sessions Court found that the appeal was not maintainable because in view of the provision contained in Sub-Section (4) of Section 195 of the Code and was maintainable in the appellate court referred to in the Civil Courts Act. This finding was challenged in the Petition filed in this Court under Article 227 of the Constitution. The learned Judge confirmed the order of the learned Sessions Judge. 16. It is true that Rule 66 of the Criminal Rules of Practice provides that an application filed under Section 340 CrPC shall be registered as a Criminal Miscellaneous Petition. Shri. Vipin Narayan, learned counsel for the petitioner submits that this is applicable to an application filed under Section 340 CrPC also because it is a criminal proceeding. The Kerala Criminal Rules of Practice was made by the High Court with the previous approval of the Governor of Kerala mainly in exercise of the powers conferred on the High Court by Article 227 of the Constitution and Section 447 of the Criminal Procedure Code. It is made “for the guidance of all Criminal Courts in the State.” No provision in it is applicable to a proceeding in a court other than a Criminal Court. Learned counsel submits that Sub-Section (4) of Section 195 CrPC is only to decide the Forum of Appeal and to clarify the Subordinate Court. He further submits that scheme of appellate jurisdiction is different for Criminal and Civil Courts. 17. In the proceedings under Section 340 CrPC the request to the Court is to file a complaint under Section 195 CrPC for one of the offences referred to in Clause (b) of Sub-Section (1) of Section 195 of the Code. It is not a complaint. In it what the court considers is whether it is expedient in the interest of justice to conduct an enquiry. It is not a complaint. In it what the court considers is whether it is expedient in the interest of justice to conduct an enquiry. After the enquiry if it thinks it proper to file a complaint, it may do so. The Civil Court in which the application is filed does not become a Criminal Court and the proceedings a Criminal Proceedings. 18. Even if it is assumed that the proceedings under Section 340 of the Code is criminal in nature, that will not make it a proceedings in a criminal court. Section 345 of the Code empowers a civil court to convict and sentence an offender in certain cases of contempt. Section 351 provides that notwithstanding anything contained in the Code an appeal lies to the court to which appeals from the decrees or orders of the sentencing court ordinarily lie. This lends assurance to the conclusion that CrPC does not contemplate a situation where an appeal from the order of a civil court may be filed under the provisions of CrPC. 19. I fully agree with the view taken by the learned Single Judge, Hon'ble Mr. Justice Ubaid, in Rocky vs. Pavunni (Supra), the Madhya Pradesh High Court in Harishankar vs. Khyalichandra (Supra) and the Rajasthan High Court in Subhash vs. State of Rajasthan (Supra). An application filed in a Civil Court under Section 340 CrPC shall be registered as an interlocutory application. An appeal challenging the order of such court is maintainable only in the court in which appeals against the decrees or orders of such court may be filed under the provisions of the Civil Courts Act. The order of the Civil Appellate Court cannot be challenged under Section 482 of the Code. The objection raised by the Registry of this court is sustained. 20. The appeal filed by the petitioner was rightly entertained by the District Court and registered as Civil Miscellaneous Appeal. The appeal was governed by the provisions in the Civil Procedure Code. The failure of the legal representatives of the deceased appellant to get themselves impleaded in the appeal resulted in its abatement. The petitioner filed an application to permit him to continue the appeal. The Appellate Court did not pass any orders on it. The appeal was governed by the provisions in the Civil Procedure Code. The failure of the legal representatives of the deceased appellant to get themselves impleaded in the appeal resulted in its abatement. The petitioner filed an application to permit him to continue the appeal. The Appellate Court did not pass any orders on it. In these circumstances, the remedy of the petitioner is to file an application in the appellate Court to get himself impleaded as the legal representative of the deceased appellant along with applications to set aside the abatement and to condone the delay in filing it. 21. I have no doubt that the court below will take notice of the pendency of this petition in this court in deciding the application to condone the delay in filing the application to set aside the abatement. 22. With this observation this Petition is disposed of.