The Judgment of the Court was as follows:—
Rankin, C.J:— In this case, the Plaintiffs who are the applicants before us brought their suit on the 25th November 1919. A second appeal was preferred to this Court in 1922 and, by the decree in that appeal, the case was remanded to the lower Appellate Court which came to its decision on the 3rd December 1924. From that decision, a second appeal was filed again to this Court on the 6th March 1925. This was heard on the 9th February 1928 by my learned brothers Mr. Justice Cuming and Mr. Justice Mukerji who differed in opinion. Mr. Justice Cuming took the view that the appeal should be dismissed, Mr. Justice Mukerji took the view that the appeal should be allowed. Very unfortunately, instead of acting under the proviso to sec. 98 of the Civil Procedure Code whereby the matter on which they differed could have been referred to one or more Judges of the Court, the procedure followed by that Bench was that the decree of the lower Court was declared to be confirmed under the opening words of sub-sec. (2) of sec. 98.
After the second appeal had been brought to this Court in 1925 but before the hearing, the amending Letters Patent which came into force on the 14th January 1928 were passed. In these circumstances, the Plaintiffs who had failed in their appeal presented to this Court a Letters Patent Appeal from the decision of the Division Bench and that appeal has been ordered to be accepted and registered, subject to any objection that may be taken by the Respondents at the hearing of the appeal as regards its competency. In addition to presenting the Letters Patent appeal, however, the Plaintiffs presented another appeal. It appears that, on the 24th February 1928, they applied to Mr. Justice Cuming purporting to act under the amended Letters Patent for a certificate that the case was a fit one to be taken on appeal and the learned Judge refused that certificate on the same day. Thereupon, the Plaintiffs presented an appeal from that order of refusal and, on that appeal being presented, a Rule No. 546S of 1928 was issued calling upon the Respondents to show cause why that appeal should not be admitted. That is the only Rule before us as regards this case.
Now, when the matter is examined, it is found to stand in this way:— By the Letters Patent as they stood before the recent amendment, a provision was made by cl. 15 for an appeal, first of all, from the judgment in certain cases “of one Judge of the said High Court or of one Judge of any Division Court pursuant to sec. 13” of the Indian High Courts Act; and, in the second place, from the judgment in certain cases “of two or more Judges of the said High Court or of such Division Court whenever such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the said High Court at the time being.” By the amending Letters Patent, cl. 15 is dealt with in this way: for that clause, an amended clause is substituted and, when the amended clause is examined, it appears that as regards the first matter, namely, the judgment of a single Judge, it is provided, first, that no appeal shall lie from a judgment in the exercise of the jurisdiction to near appeals from Appellate decrees but to that there is an exception, viz., that an appeal shall lie in such a case where the Judge Who passed the judgment declares that the case is a fit one for appeal.
As regards the second of the two matters which I have mentioned as being dealt with by cl. 15 as it originally stood, namely, an appeal from the judgment of a Division Bench of two or more Judges where the Judges are equally divided in opinion, the amendment made by the amending Letters Patent is to omit that provision altogether. Upon that state of facts in the circumstances of the present case, it appears that various questions arise. But one question which does not arise in any circumstances is the question of there being any necessity to have, a certificate as a condition of bringing a Letters Patent appeal. That certificate is a condition attached by the amending Letters Patent only to the case of a judgment of a single Judge and the right of appeal given in the case of a difference of opinion where the Judges are equally divided is dealt with in the amended Letters Patent by being deleted altogether. In that view, it is clear that, whether or not Mr. Justice Cuming refused the certificate on the ground that he had no jurisdiction to give one or on any other ground, his decision was, in fact, right because there was no jurisdiction to give such a certificate and no such certificate could have operated anything. In this view, it appears to me that the present appeal from the refusal to give such a certificate must come to nothing and that the present Rule calling upon the Respondents to show cause why this appeal should not be admitted must be discharged. There is no question in such a case of granting a certificate; still less of any appeal from the refusal to grant such a certificate.
It remains to make quite clear that, when the appeal which has been registered against the decree dismissing the second appeal comes on for hearing, the question whether the effect of the amending Letters Patent is to take away the right of appeal which formerly would have existed will be disposed of by the Court. As regards that question, it is a special question and is not an easy, question. It is entirely a separate question from the question which has been argued in the other Rule (No. 545S of 1928), in which we have reserved judgment. In my opinion, it is more correct to allow that question to be determined in due course at the decision of the appeal. In fact, we have no right to dispose of that second appeal here and now without consent of parties and, in any case, learned Advocate for the Plaintiffs prefers that the question of his clients' right of appeal should be determined under the existing order when their appeal comes on for hearing and not now.
The only other question that remains is the question of costs of this rule. It is perhaps unfortunate for the parties that we have required this matter to be argued twice. But it is a new question and, in my judgment, it is not a case in which we ought to make either party pay costs. There will be no order as to costs. The rule will be discharged.
C.C Ghose, J.:— I agree.
Suhrawardy, J.:— I agree.
B.B Ghose, J.:— I agree.
Page, J.:— I agree.
P.C