Sanderson, C.J:— With regard to the preliminary objection which was raised by Mr. Jackson, when that point was taken, the case was argued upon the assumption that the suit had been dismissed under Or. IX, r. 8, which deals with default of appearance, and, therefore, I propose, whatever may have been the real position, to deal with the argument which was presented to us by the learned Counsel upon the basis that the order by Mr. Justice Imam dismissing the suit was made under Or. IX, r. 8. That order was made on the 5th of February 1915. Then an application was made on the 25th of March of this year to set aside that order of dismissal. That was heard by the learned Judge and was refused, and the Plaintiff appealed from that order of refusal to restore the case and set aside the dismissal, and a preliminary point has been taken by the learned Counsel for the Defendant that no appeal lies from such an order.

It was argued by the learned Counsel for the Defendant, Mr. Jackson, first that the order in question was not a “judgment” within the meaning of cl. 15 of the Letters Patent; and secondly that if it is not within cl. 15 of the Letters Patent, the Civil Procedure Code has no application to an appeal from a Judge of the High Court to other Judges of that Court.

As to the first point, namely whether the order in question was a “judgment” within the meaning of cl. 15, personally I should not have had much doubt or hesitation in holding that the order was a “Judgment” within the meaning of that clause, if it had not been for some cases which were cited to us. It is quite true that the learned Judge had no discretion upon the question of the dismissal of the suit under Or. IX, r. 8. In fact, the rule expressly says, “where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed.” The learned Judge has no option and under such circumstances he must dismiss the suit. But when the application to set aside that dismissal is made, in my opinion, the Judge has a discretion, and he must exercise his judgment on the materials before him. The question on which he has then to exercise his judgment and his judicial discretion may, as in this case, be a matter of great importance: It is no less than whether the Plaintiff under the circumstances of the case shall be allowed to prosecute his suit or for all time be debarred from trying to enforce his claim. Cl. 10 obviously refers to “judgments,” which in common parlance may be called orders. In my opinion, the decision so arrived at on such a question as above stated would be a “judgment” within the meaning of the word “judgment” in the Letters Patent. The judgments, however, in some of the cases which Mr. Jackson has cited to us throw some doubt upon the correctness of the above view. I do not refer to them all, though I have considered them: the most important are Hurrish Chandra v. Kali Sundari and Gobinda Lal v. Shiba Das. I only pause to remark that the exact point which arises in this case has not been decided, as far as I know, in any reported case, and I am informed that many such appeals, as this, have been heard in the Court of appeal here, but it is said that in one unreported case the decision of this Court was that an appeal would not lie. The decision in the present case on the application of the Plaintiff does, in my opinion, decide a question which affects the rights of the Plaintiff. He alleges that he should be allowed to prosecute his claim. A refusal of the application debars him for all time. If he had put in a plaint which was ill-framed and that had been struck out by the learned Judge according to the decision in one of the cases, he would have a right of appeal within the very terms of the judgment in that case—that was an illustration in the case in 10 Indian Appeals — yet when an order is made which debars his suit for all time, according to the argument of Mr. Jackson, he is not to have a right of appeal. I should be very loth to hold that this order is not a “judgment” within the meaning of cl. 15 of the Letters Patent. But it is not necessary in my judgment to give a definite opinion upon it, because I think, on the second point, the Code does give a right of appeal. By cl. 44 of the Letters Patent it is provided as follows: “And we do further ordain and declare, that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council, exercised at meetings for the purpose of making laws and regulations.” By the terms of sec. 117, the Code is made applicable to the High Court, and Or. XLIII, rule I gives a right of appeal in the very case under discussion. But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court. I cannot follow that argument. It is part of the Defendant's case that Or. IX, r. 8 applies. That order is in effect a part of the Civil Procedure Code. It seems to me strange that the Plaintiff should be subjected to Or. IX, r. 8 and be liable to have his suit dismissed for want of appearance, yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which—when his application for re-instatement has been refused—gives him a right of appeal against that refusal, he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code. I think this is not a true view or a reasonable construction to put upon the Code and the rules made under it. In my judgment, the Code and the rules do apply and the Plaintiff has a right of appeal.

Woodroffe, J.:— I need not in this case consider the question whether sec. 10-4 of the Civil Procedure Code touches the right of appeal given by the Letters Patent, for, if the order appealed from is a judgment within the meaning of the Letters Patent the question does not arise. It has doubtless been held that an order dismissing an appeal for default is not a judgment [see Mansab Ali v. Nihal Cliand(3)]. But we are not concerned here with an order under Or. IX, r. 8 only but with an application for restoration under Or. IX, r. 9. Whether or not as a question of jurisdiction an appeal lies under cl. 15 of the Letters Patent in a case in which an appeal is allowed under the Code I think it may be said that there are primâ facie grounds for holding that an appeal should be held to lie under the Letters Patent where it is allowed under the Code; for, the fact that the Legislature has in the Code allowed an appeal in a particular case affords to my mind primâ facie ground for supposing that case is of a class which this Court considers appealable under its Letters Patent. This Court has further held that we should not adopt a narrow construction [see Mussamut Brij Coomaree v. Ramrick Das]. Looking at the nature of the order appealed from, I think I should hold that it is appealable as a “judgment” under the Letters Patent. I do not consider the case of Gobinda Lal v. Shib Das, which was on another section, is any bar to my so holding.

Mookerjee, J.:— This appeal is directed against an order under r. 9 of Or. IX, of the Civil Procedure Code, whereby Mr. Justice Imam has refused to set aside an order of dismissal of a suit made by him under r. 8.

As a preliminary objection has been taken to the competency of the appeal, it is incumbent upon the Appellant to establish that she has a right of appeal [Meenakshi Naidu v. Subramanya Sastri(5)], for as Lord Bramwell said in Sandback Charity Trustees v. North Staffordshire By. Co.(6) an appeal does not exist in the nature of things; a right of appeal from any decision of any tribunal must be given by express enactment—words quoted with approval by Lord Macnaghten in Rangoon Botatoung Co., Ld. v. Collector of Rangoon. She relies upon Or. XLIII, r. 1, cl. (c), C.P.C, as also upon cl. 15 of the Letters Patent. Or. XLIII, r. 1, cl. (c), provides that “an appeal shall lie from an order under Or. IX, r. 9, rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.” The question, consequently, arises, whether Or. XLIII, r. 1, cl. (c), is applicable to an order under Or. IX, r. 9, made by a Judge on the Original Side of this Court.

On behalf of the Appellant, reliance has been placed upon sec. 117 of the Code, which lays down that “Save as provided in this part or in part X or in Rules, the provisions of this Code shall apply to High Courts established under the Indian High Courts Act, 1861.” The only provision in part IX, which may have any possible bearing, is that contained in sec. 120, which obviously does not touch the present question. The provision in part X, which deals with this matter, is contained in sec. 129; this also does not militate against the contention of the Appellant. The term “Rule,” which finds a place in sec. 117, is defined in cl. 18 of sec. 2 of the Code to mean “a rule contained in the First Schedule or made under sec. 122 or sec. 125.” Our attention has not been drawn to any such Rule which makes Or. XLIII, r. 1, cl. (c), inapplicable. On the other hand, Or. XLIX, r. 3, which excludes the operation of other Rules, lends support to the contention of the Appellant that Or. XLIII, r. 1, cl. (c), is applicable to the present appeal.

But it has been argued on behalf of the Respondents, on the authority of the decision of the Judicial Committee in Hurrhish Chandra Chowdhry v. Kali Sundari Debia, that the Civil Procedure Code, in so far as it provides for appeals, does not apply to an appeal preferred from a decision of one Judge of a High Court to the Full Court. The true effect of the decision of the Judicial Committee was considered by this Court in Toolsi Money Dassee v. Sudevi Dasi, but it is not necessary for my present purpose to determine its bearing in all its implications, because, in my opinion, the law has been substantially altered since that decision was pronounced. Sec. 104 of the Code of 1908 is materially different from sec. 588 of the Code of 1882. It provides that “an appeal shall lie from the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders.” The effect of sec. 104 is thus, not to take away a right of appeal given by cl. 15 of the Letters Patent, but to create a right of appeal in cases even where cl. 15 of the Letters Patent is not applicable. I may here observe parenthetically that in the case of Toohi Money Dassee v. Sudevi Dasi, Prinsep, J., felt pressed by the argument that if an appeal was deemed to have been allowed by the Code of Civil Procedure, there was no provision for the constitution of a Court to which such an appeal might be preferred. Sec. 106 of the Code, however, lays down that “where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made.” Consequently, where a right of appeal has been so given, it would be the duty of this Court to constitute a Court of Appeal under sec. 13 of the Indian High Courts Act. I hold accordingly that this appeal is competent under cl. (c), r. 1, Or. XLIII of the Civil Procedure Code.

I am further of opinion that the appeal is competent also under cl. 15 of the Letters Patent. That clause allows an appeal from a “judgment,” and, the controversy has consequently centred round this expression. Reference has been made to the now classical definition [Brij Coomari v. Ramrick] first formulated by Couch, C.J, in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Co.; “judgment” in cl. 15 means a decision “which affects the merits of the question between the parties by determining some right or liability; it may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only % part of it leaving other matters to be determined.” Substantially the same view was adopted by Sargent, C.J, in Sonabai v. Ahmedbhai Habibhai(10) and was later on applied by Couch, C.J, himself in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed(11), where he held that an appeal lies from an order refusing to set aside an order granting leave to a Plaintiff to sue under cl. 12 of the Letters Patent. Reference may also be made to the decision of this Court in Kali Sundari Debia v. Harrish Chandra Chowdhry where an appeal was entertained against an order refusing to transmit for execution an order of His Majesty in Council. It must be remembered in connection with these decisions that they do not profess to give an exhaustive definition of the term “judgment,” and other definitions of a very comprehensive scope have, from time to time, been attempted, for instance by Scott, C.J, in Ahmed Bin Sheikh Essa Bin Khalifa v. Ayeshabai(12), by Bittleston, J., in De Souza v. Coles(13), and by White, C.J, in Tuljaram Row v. Alagappa Chettiar(14). In the opinion of Bittlestone, J., the term “judgment” includes “any decision or determination affecting the rights or the interest of any suitor or applicant,” and that it is “impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from.” In the opinion of White, C.J, this is too wide, and the test is “not what is the form of the adjudication, but what is its effect in the suit or proceeding in which it is made; if its effect, whatever its form may be, and whatever be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court, before which the suit or proceeding is pending, is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, the adjudication is a judgment.” But, whether we adopt the wider or the narrower view of the scope of the term “judgment” although I may add that I am not disposed, as Maclean, C.J, was not disposed [Brij v. Ramrick] to favour an attempt to place a narrow construction on the term “judgment,” — it is plain that the order in this case is a “judgment” within the definition formulated by Couch, C.J, in Justices of the Peace for Calcutta v. The Oriental Gas Co.. The order under appeal does affect the merits of the question in controversy between the parties by the determination of a right or liability. No doubt, it has been argued that the right or liability of the parties was determined by the dismissal of the suit and the position was not affected by the subsequent dismissal of the application to revive the suit. But this clearly overlooks the fundamental point that the primary order of dismissal of the suit was liable to be revoked, as it was subject to a possible order of restoration under r. 9. The effect of the subsequent order is accordingly to give a character of finality to the primary order of dismissal, by a determination that the Applicant had failed to establish grounds in support of his alleged right to an order under r. 9 of Or. IX. Such determination is, in my opinion, a “judgment” within the meaning of cl. 15 of the Letters Patent.

I am not unmindful that the contrary view may receive an apparent support from some dicta in reported decisions, for instance, Rughoo Bibee v. Noor Jehan and Gobinda Lal v. Shiba Das. As regards the former case, which ruled that an order dismissing an application for review is not a judgment, it is sufficient for our present purpose to observe that judicial opinion on this matter has not been uniform [Ramhari v. Madan Mohan, Anbhoy Churn v. Shamont Lochan and Mulji Verji v. Bangabasi Saha(18)]. As regards the latter case, stress is laid upon the following passage in the judgment of Ghose, C.J, “an order which terminates a proceeding is a judgment within the meaning of cl. 15, but it must be a proceeding in the course of a suit or in relation thereto, and in which some question or other as to the right or liability of any party is raised, and not a proceeding in respect of a matter which had already come to termination by operation of law or otherwise.” I feel bound to record my respectful dissent from this exposition of the law, for the qualification formulated plainly carries us beyond the definition of the term “judgment” as given by Couch, C.J, and if the question arises in another case precisely on all fours with the decision mentioned, and if it comes before me, I shall not hesitate to refer the matter for consideration to a Full Bench. It is not necessary however to adopt that course on the present occasion, as admittedly there is no decision which precisely covers the case before us; and the class of cases which rule that an order refusing [Mowla Buksh v. Hodgkinson(19), Manley v. Pattersor(20), Lutf Ali v. Ashgm Reza(21) and Kishen Pershad v. Tiluekdhari] or granting [Amimnnissa v. Behary Lall(23) and Mowla Buksh v. Kishen Pershad(24)] an application for leave to appeal to His Majesty in Council, or for stay of execution [Mohabir Prosad v. Adhikan Kunwar(25) and Chitto Sheik v. Muzzur Hossain(26)] is not a “judgment,” plainly stands on a different footing.

S.C.M

Appeal allowed.