(Delivered by The Chief Justice).
This is an application for leave to appeal to the Federal Court against the judgment of this Court in Referred Case No. 19 of 1946. As a question arose before us and was discussed whether an appeal lay to the Federal Court against the judgment of this Court, we may deal with the point briefly.
Under S. 3 of Act I of 1948, as from the appointed day, that is the first day of February, 1948, an appeal shall lie to the Federal Court from any judgment to which the said Act applies. A “judgment to which this Act applies” is defined in S. 2(b) of the Act as “any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council, either with or without special leave, if this Act have not been passed.” Undoubtedly, the judgment of this Court was passed in a civil case, because the category of civil cases excludes only criminal cases from the application of the enactment. The question then is whether the judgment sought to be appealed against is the judgment from which a direct appeal could have been brought to His Majesty in Council. There can be only one answer to this question and that answer rests upon the language of S. 66-A(2) of the Indian Income-tax Act, which runs thus:
“An appeal shall lie to His Majesty in Council from any judgment of the High Court delivered on a reference made under S. 66 in any case which the High Court certifies to be a fit one for appeal to His Majesty in Council”
The judgment of this Court was such a judgment delivered on a reference made under S. 66. It is clear, therefore, that an appeal will lie to the Federal Court under the provisions of Act I of 1948.
The ruling of the Judicial Committee in Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority of Bombay (1) was brought to our notice. In that case, it was held that no appeal lay to the Privy Council under Cl. 39 of the Letters Patent of the Bombay High Court from a decision of the High Court upon a case stated and referred to it by the Chief Revenue Authority under S. 51 of the Indian Income-tax Act of 1918. From the elaborate discussion of their Lordships and from the final conclusion, it becomes abundantly clear that the ratio decidendi of that decision was that the decision or judgment or order made by the High Court under S. 51 of the Income-tax Act, 1918, was merely advisory, and not in the proper and legal sense of the term, final. It was necessary for their Lordships to discuss the import of the word “final”, because in Cl. 39 of the Letters Patent the words are “from any final judgment, decree or order”. It may be noticed that according to the definition contained in S. 2(b) of Act I of 1948 “judgment to which this Act applies” means “any judgment, decree or final order,” and not “any final judgment, decree or order.” The difference in the language makes the ruling of the Privy Council in the Bombay case inapplicable to the present application.
In our opinion, the question raised before this Court was of considerable importance, and we certify that this is a fit case for appeal to the Federal Court. The application is granted.
N.R.R