1. A preliminary objection is taken to the hearing of this appeal that no appeal under Clause 10, Letters Patent, lies at all. In a first appeal which was pending before a learned Judge of this Court one of the parties died and two sets of claimants filed applications to be brought on the record as his legal representatives. The learned Judge after going into the matter at considerable length came to the conclusion that the contesting respondent should be considered as the legal representative of the deceased and accordingly dismissed the application of the present appellants. The present appeal has been preferred from this order. The first question is whether the order appealed against was a judgment within the meaning of Clause 10, Letters Patent. When the old Code of Civil Procedure was in force there were observations made in a Full Bench case of this Court, Muhammad Nairn Ullah Khan v. Ihsan Ullah Khan (1892) 14 All. 226, which might suggest that judgments within the meaning of Clause 10 would be orders under the Code of Civil Procedure which were appealable, and not those which were not appealable, tout there was no such clear decision. In Sevak Jeranchod Bhogi Lal v. Dakore Temple Committee A.I.R. 1925 P.C. 155 at p. 558 their Lordships of the Privy Council in course of their judgment remarked that the term "judgment" in Letters Patent of the High Court meant in civil cases a decree and not a judgment in the ordinary sense. Their Lordships were obviously drawing a distinction between a decree and judgment as contemplated in the Code of Civil Procedure in which the judgment contains the reasons and the decree embodies the final order which governs the rights of the parties. This case was considered by a Full Bench of this Court in Sital Din v. Anant Bam A.I.R. 1933 All. 262 and it was held that an appeal lay from an order of remand passed by a single Judge of this Court, although such an order under the Code of Civil Procedure would be an order of remand and not a decree as denned in Section 2, Civil P.C.
2. In a recent Full Bench case of this Court, namely Shahzadi Begam v. Alakh Nath A.I.R. 1935 All 620 it was pointed out that in consequence of the view expressed in Sital Din v. Anant Bam A.I.R. 1933 All 262 it could not be held that no appeal would lie from an appealable order which did not amount to a decree under the Civil Procedure Code. It was also pointed out that the observations made in certain earlier cases, that an order which is not appealable under the Civil Procedure Code would not be a judgment within the meaning of the Letters Patent, could not be considered as containing any exact definition of judgment, but a mere rough rule of interpretation. There can be no doubt that a narrow construction has been put on the word "judgment" in the Letters Patent, and since the observation made by their Lordships of the Privy Council in Sevak Jeranchod Bhogi Lal v. Dakore Temple Committee A.I.R. 1925 P.C. 155 the word "judgment" cannot be taken in its widest scope. It is quite clear that if this dispute had arisen in the trial Court and an order had been passed by that Court, no appeal would have lain to the High Court from an order substituting the contesting respondent as the legal representative of the deceased. An order of this kind is not made an appealable order under the Code. There is no greater hardship if a similar order of a learned Judge of this Court is not appealable. That may not be an absolute test, but it certainly furnishes a guidance. It has been held recently by a Bench of this Court in Antu Rai v. Ram Kinkar Rai A.I.R. 1936 All 412 that an order declaring a particular person as the legal representative of the deceased would not operate as res judicata, between the claimants in a subsequent suit, though of course for purposes of the subject matter of the dispute in this case the question as between the claimants and the opposite party would not be allowed to be re-agitated. No authority of this Court has been cited on behalf of the appellants to show that this Court has entertained an appeal from an order, which was not appealable under the Civil Procedure Code, since the pronouncement of their Lordships of the Privy Council. In Sital Din v. Anant Bam A.I.R. 1933 All 262 the order was of remand which would have been appealable under the Code if passed by the lower Court. In Shahzadi Begam v. Alakh Nath A.I.R. 1935 All 620 the appeal was not admitted from an order which would not have been appealable in such cases.
3. The learned Counsel for the appellants relies on the case in Shivaji Poonja v. Ramjimal Babu Lal A.I.R. 1931 Bom 125. But that was a case of an appeal from an order refusing to set aside an award which, if made by the lower Court, would have been appealable under Section 104, Civil P.C., A Bench of the Calcutta High Court in Burga Prasad v. Kantichandra Mukherji A.I.R. 1935 Gal 1 entertained an appeal from an order refusing to stay a suit under Section 10, Civil P.C., and the Rangoon High Court in C.E. Dooply v. M.E. Moolla A.I.R. 1927 Rang 180 entertained a Letters Patent appeal from an order refusing to implead certain applicants as parties to a suit under Section 92, Civil P.C., With great respect, we are unable to agree that the word "judgment" in the Letters Patent could be extended to such cases. So far as the two rival claimants are concerned, the question as to who is the legal representative of the deceased has not been finally adjudicated upon and can be re-agitated as between them. It is, therefore, not a final adjudication of the rights of the parties by the Court at all. All that was necessary was to bring on the record some person who was found to be the legal representative of the deceased so that the case may be proceeded with and the rights of the opposite party finally determined. We are accordingly of the opinion that in view of the rulings of this Court no Letters Patent appeal would lie from an order of this kind.
4. It has been urged on behalf of the appellants that there would be a great hardship on persons in their position if no appeal were allowed, inasmuch as the appeal would be decided in their absence and they may be very seriously prejudiced, particularly if the rival claimant secretly colludes with the respondent or allows the appeal to be dismissed for want of prosecution or for default of appearance. It seems to us that an appeal cannot be entertained on a mere ground like this. Under Section 107, Sub-section (2) an appellate Court possesses all the powers which the original Court possesses, subject to any conditions and limitations that may be prescribed in the Code. Under Order 1, Rule 10, Sub-rule (2) power is conferred on the original Court in certain circumstances to implead a fresh party or implead a new person as a party. Where a person is sought to be impleaded against his will who was not a party in the Court below the position would be different, for under Order 41, Rule 20 such a power could not be exercised by the appellate Court so as to enable it later on to pass a decree against him: see the case in Pachkari Raut v. Ram Khilawan Chaube A.I.R. 1914 All. 293 and Frim Shiam Lal Joti Prasad v. Dhanpat Rai A.I.R. 1925 All. 768. But where the party concerned himself applies to be made a pro forma defendant or pro forma respondent in order to prevent fraud or collusion without asking for a fresh opportunity to file a written statement or produce evidence, the case may stand on a different footing and the Court may in the interest of justice implead him. We therefore do not think that this consideration; should weigh against the view which has prevailed in this Court that the word "judgment" used in the Letters Patent is used in a restricted sense and does not; cover all eases of orders passed by a single: Judge of the High Court. We think that the preliminary objection prevails and we accordingly dismiss the appeal with costs
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