Sinha, C.J and Mudholkar, J.:— (10-1-52) This appeal and Letters Patent Appeal 15 of 1947 are in the nature of cross-appeals from the same order, which in effect is an order of remand. When the appeals were filed the office expressed a doubt as to the maintainability of the appeals in view of the decision of a Division Bench of this Court in ‘Kunwarlal Singh v. Smt. Umadevi’, ILR (1946) Nag 482. Though the point arising in these appeals was not specifically decided in that case, the ‘ratio decidendi’ in that case would seem to cover the present case also. As we entertain a doubt as regards the correctness of that decision applied to the present appeals we refer the following question for the decision of a Full Bench:

“Whether the order of remand passed by a Single Judge of this Court sitting in Second Appeal amounts to a judgment within the meaning of clause 10 of the Letters Patent of this Court?”

2. These appeals will be heard after the Full Bench has decided the point.

OPINION

Sinha, C.J:— I have had the advantage of perusing the opinion recorded by my learned Brother Hidyatullah, J. In his exhaustive treatment of the subject, viz., the legal significance of the term ‘judgment’ within the meaning of Clause 10 of the Letters Patent he has dealt with the main currents of decisions of the different High Courts in India as also of the Federal Court and of their Lordships of the Privy Council. He has not confined his attention only to the question referred but has dealt with the subject on a much wider scale. He has taken the trouble of propounding a definition of the term ‘judgment’. Speaking for myself I would not attempt a definition which the Legislature has not attempted so far, beyond saying that ‘judgment’ means the statement given by the Judge of the grounds of a decree or order. That is a definition given by the Code of Civil Procedure, which may not be conterminous with the meaning attached to the term ‘judgment’ under the Letters Patent. I agree with my learned Brother in the answer proposed by him to the question referred to the Full Bench. As indicated in the opinion of my learned Brother Hidayatuliah, J. this reference was necessitated by the observations made in a number of reported decisions of this Court which, relying upon the ruling of their Lordships of the Judicial Committee of the Privy Council in ‘Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 P.C 155, appear to hold that the term ‘judgment’ in clause 19 of the Letters Patent means a decree in a civil case and that therefore no appeal under that clause of the Letters Patent would lie from a judgment which had not the effect of a decree. The learned Judge has referred in detail to those decisions of this Court in paragraphs 76 to 83 of his opinion. Hence I need not repeat those references. I would agree with him in holding that in so far as those cases held that the decision of their Lordships of the P.C referred to above is an authority for the proposition that no appeal under clause 10 of the Letters Patent would lie from a judgment which has not the effect of a decree, they are not on solid ground, and those observations, apart from the actual decisions, must therefore be held to be not good law.

3. But I do not thereby mean, to say that the actual decisions in those cases were wrong. As a matter of fact, in most of those cases the actual decisions could be supported without going so far as to say that the Privy Council in the case referred to above intended to lay down that sweeping proposition. As we have pointed out in our judgment in ‘Dr. Govind Waman Pandit v. Purushottam Vithal’, L.P.A No. 5 of 1950 D/- on 26-12-1951 (Nag) discussed in detail in paragraphs 84 to 87 of the opinion of my learned Brother, the misunderstanding of the Privy Council judgment aforesaid arose from the circumstance that the unofficial report of the case has not given the facts of the case or the arguments at the Bar before their Lordships.

4. As the words used by their Lordships have not been interpreted with reference to the context of their Lordships' decision, it was very easy to infer that their Lordships had gone to the length indicated by the judgments of this Court, the correctness of which we have doubted in our judgment in ‘Dr. Govind Waman Pandit v. Purushottam Vithal’, LPA No. 5 of 1950 (Nag). As soon as it is realized that those observations of their Lordships of the Judicial Committee were made with reference to clause 29, equivalent to clause 39 of the Letters Patent of the Presidency High Courts, and not with reference to clause 10 of the Letters Patent of this Court, the source of the error is easily located.

5. I should not be understood to have differed from my learned Brother in so far as he has proposed a definition with reference to the content of it, but I have only given expression to the principle that Judges have simply to apply the law to the facts of a particular case and may not appear to lay down a definition which should be taken to be exhaustive of all the categories into which a judgment may fall.

Hidayatullah, J.:— The case in which this reference has been made was filed by a ‘lambardar’ to recover from a cosharer the assessment on the Sir and Khudkasht lands of the village. The defendant in the suit had claimed a set-off on the basis of village profits. The claim of both sides was for twelve years.

6. The decisions in the three Courts were not uniform. The Court of first instance framed certain preliminary issues and gave findings on those issues. The learned Judge held that the plaintiff was entitled to claim assessment for eleven years and that the defendant could not claim to set off the profits due to him. During the pendency of the appeal and the revision before this Court, parties agreed tentatively that on the basis of those findings the claim of the plaintiff for assessment for eleven years amounted to Rs. 462/-.

7. The appeal against the findings was found to be incompetent and the revision was dismissed. Thereafter the Court of first instance, in view of the tentative findings based on the agreement of the parties, passed a decree for Rs. 462/- in the plaintiff's favour. On appeal, the claim of the defendant to a set off on account of village profits for eleven years was held to be competent. The decree of the first Court was accordingly discharged and the suit was remanded to that Court for trial after admitting the defendant's claim for a set-off for village profits for eleven years.

8. Against this order plaintiff filed an appeal and asked for a reversal of the decree of the appellate Court. The defendant also filed a memo of cross-objection and claimed a decree for Rs. 86/15/- against the plaintiff. Before the learned single Judge of this Court the plaintiff succeeded partially by having the claim of set-off modified from eleven years to three years. The cross-objection of the defendant also partially succeeded, the learned Judge holding that the claim was maintainable for the item of village profits, though for three years instead of eleven. The learned single Judge thereupon observed as follows in his judgment:

“It will now be necessary for the first Court to try the remaining issues on the basis of the above findings. The agreement in the first Court where Rs. 462/- was agreed related to the assessment for 11 years. This no longer holds good because the details for each year were not furnished separately. Accordingly, unless the parties can again agree on a figure, the matter will have to be investigated and tried. I remand the case to the trial Court accordingly.”

9. Against that order appeals were filed under clause 10 of the Letters Patent of this Court and the appeals came up for hearing before a Division Bench composed of two of us (Sinha, C.J, and Mudholkar. J.). When the Letters Patent appeals were filed, the office had expressed a doubt about the competency of the appeals in view of the decision of a Division Bench of this Court in ‘Kunwarlal Singh v. Smt. Umadevi’, ILR (1946) Nag 482. In ‘Dr. Pandit v. Purushottam Vithal’, L.P.A No. 5 of 1950 (Nag) my Lord the Chief Justice and myself had held, differing from the earlier case, that an appeal against an order of remand in certain circumstances lies under clause 10 of the Letters Patent. The Division Bench, therefore, expressed itself that they entertained a doubt as regards the correctness of the decision in the case of ‘Kunwarlal Singh v. Smt. Umadevi’, (cit. sup.) and referred the following question for decision to a Full Bench:

“Whether the order of remand passed by a single Judge of this Court sitting in Second Appeal amounts to a judgment within the meaning of Clause 10 of the Letters Patent of this Court?”

10. The question which has been framed is in general terms and concerns all the remands. It makes no distinction between the remands ordered under Rules 23 and 25 of Order XLI of the CPC; nor does it take into account other remands which sometimes take place when Judges invoke the inherent powers of the Court. However, as the answer which I propose to give would indicate the different approach in different cases, there is no need to attempt to re-frame the question.

11. Whether or not an appeal lies against an appellate judgment under the Letters Patent must necessarily depend upon a true interpretation of the clause under which the right of appeal is given. That clause, with certain omissions, is as follows:

“10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur from the judgment…………………of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided.”

12. The language of this clause is different from that of clause 29 by which appeals to Privy Council are governed. In the latter clause the appeal lies

“from any final judgment, decree or order of the High Court of Judicature at Nagpur made on appeal, and from any final judgment, decree or order made in the exercise of original jurisdiction by Judges of the said High Court, or of any Division Court, from which an appeal does not lie to the said High Court under the provisions contained in the tenth clause of these presents:”

13. It may be pointed out that Clause 30 of the Letters Patent provides for appeals from interlocutory judgments, and it is stated there:

“……that it shall be lawful for the High Court of Judicature at Nagpur at its discretion, on the motion, or, if the said High Court be not sitting, then for any Judge of the said High Court, upon the petition, of any party who considers himself aggrieved by any preliminary or interlocutory judgment, decree or order of the said High Court, in any such proceeding as aforesaid to grant permission to such party to appeal against the same to Us…………”

14. I may also point out that under Section 109 of the CPC, where the statutory right of appeal to His Majesty is given, there is no mention of the word ‘judgment’. The appeal lies from “final decree or order”. All this has a bearing upon the discussion which will follow and I quote them here to obviate the necessity of quoting them again.

15. What is meant by the term ‘judgment’ in the Letters Patent of this Court as well as of the other High Courts has led to violent differences of opinion all over the country. No settled definition of the term ‘judgment’ is yet available, in spite of the fact that these Letters Patent as well as the Charters have existed for nearly a century. To give an analysis of the cases in the course of a single judgment would be a task not commensurate with the utility of the research; nor is it profitable to go into the various ramifications of the leading definitions propounded in different Courts. In this opinion I have attempted to analyse only such decisions as can be said to have materially added to the discussion and in considering the decisions of the different High Courts I have tried, as far as possible, to refer to those cases which deal with the question of remand or a matter analogous thereto.

16. On an analysis of the whole question it would appear that the leading definitions have come from Bittleston, J. of the Madras High Court in ‘De Souza v. Coles’, 3 Mad HCR 384. Sir Richard Couch in ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’, 17 W.R 364 (Cal) and ‘Hadjee Ismail v. Hadjee Mahomed’, 21 W.R 303 (Cal), Sir Arnold White in ‘T.V Tuljaram Row v. Alagappa Chettiar’, 35 Mad 1 (FB), Page, C.J in ‘In Re Daya-Bhai Jivandas v. Murugappa’. 13 Rang 457 (FB) and from the Privy Council in ‘Sevan Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 P.C 155 as also ‘Tata Iron & Steel Co. Ltd. v. Chief Revenue Authority, Bombay’, 47 Bom 724. During the course of this opinion, I shall examine these definitions; but before I do so, I wish to trace the discussion of the term in each Court separately. I may point out that a great deal of confusion — if I may say so respectfully—has occurred after the decision in the ‘Dakore Temple Case’, which influenced the decisions in the Allahabad, the Nagpur and the Rangoon High Courts, with the result that the entire approach to the question was modified on the authority of Sir John Edge in that case. I shall refer to all this in an appropriate place.

17. Since the earliest definition was attempted in a Madras case, I think it would be in the fitness of things to begin with a consideration of that decision and show how far that definition was departed from both in the Calcutta and the Madras High Courts.

18. The earliest Madras case to which I have already referred is ‘De Souza v. Coles’, 3 Mad HCR 384 in which Bittleston, J. defined the term ‘judgment’ as follows:

“Upon consideration, we think that the word ‘judgment’ there used cannot be Limited to the final judgment in a suit nor indeed to a judgment in a suit at all, but must be held to have the more general meaning of any decision or determination affecting the rights of any suit or application.”

19. The best commentary upon this definition is furnished by quoting the words of Sir Richard Couch, C.J during the course of arguments in the well-known case of the ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’, 17 W.R 364 at p. 367, which are to the following effect:

“Mr. Justice Bittleston scarcely meant that there might be an appeal from every order made in the course of a suit. In that case the appeal was from an order refusing to admit a plaint. That order was one of some finality and was a decision or determination affecting the rights or the interests of a suitor, but in this case the order granting the rule merely institutes the proceedings. It may just as well be said that an appeal will lie from admission of a plaint. There may be an appeal from the order rejecting a plaint, Decause such an order is in its nature a judgment, but there is no appeal from the admission of one; that is just the distinction between the cases in which an appeal will lie and those in which it will not lie.”

20. The definition of Mr. Justice Bittleston has on more than one occasion been dissented from in the Madras High Court itself, and it was not approved in the leading case of the Madras High Court in ‘T.V Tuljaram Row v. Alagappa Chettiar’, (35 Mad 1 FB) (cit. sup.). I need not refer to various other decisions, e.g, ‘Venganayyan v. Ramasami Ayyan’. 19 Mad 422 and ‘Chinnasami Mudal v. Arumuga Goundan’, 27 Mad 432 which were dissented from later, and I take up for consideration the decision of Sir Arnold White. C.J, and Krishnaswami Ayyar, J. in the Full Bench case.

21. In that case Sir Arnold White attempted a definition of the term ‘judgment’ which essentially represents one of the two leading views on the subject in India. The learned Chief Justice observed as follows:

“The test seems to me to be 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 may 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, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.

“I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained)—e.g, an order on an application for an interim injunction, or for the appointment of a receiver is a ‘judgment’ within the meaning of the clause.”

22. The learned Chief Justice then goes on to say:

“Speaking generally, I think the word ‘judgment’ means any ‘final order, decree or judgment’ within the meaning of those words as used in Section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of Section 15 of the Letters Patent. On the other hand, I am not prepared to say as was held in the Justices of the Peace for the Town of Calcutta v. Oriental Gas Co., Ltd., 8 Beng L.R 433 and in ‘Sonbai v. Ahmed Bhai’, 9 Bom H.C.R 398, that it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section, though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding.”

23. The same view was expressed by Krish-naswami Ayyar, J. He referred to a number of authorities on the meaning of the word ‘judgment’ and drew a distinction between preliminary or interlocutory judgment and a preliminary or interlocutory order and held that though a preliminary or interlocutory judgment was included in the word ‘judgment’ as used in Clause 15 of the Letters Patent, an interlocutory order was not so included. The learned Judge refers to those authorities at pages 10 and 11 of the report and he observes as follows:

“In Daniel's Chancery Practice, Volume I, page 625 the following definition occurs: — ‘A judgment is a sentence or order of the Court, pronounced on hearing and understanding all the points in issue, and determining the right of all the parties to the cause or matter. It is either interlocutory or final.’ These judicial pronouncements are known as ‘judgments’ at Common Law and as ‘decrees’ in Chancery. See page 321, Introduction to Seton on ‘Decrees’. A more accurate definition is to be found in Black on ‘Judgments’ at page 2 where the author says:— ‘We may define a judgment as the determination or sentence of the law pronounced by a competent judge or court as the result of an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal duty or liability does or does not exist.’

Again at page 3, ‘the term which, in equity practice, corresponds to ‘judgment’ at common law is ‘decree’. A ‘decree’ is a determination or sentence of equity pronounced by a competent Court upon the controversies submitted for decision.’ At page 32 the author proceeds to define an interlocutory judgment. “A ‘judgment’ which is not final is called ‘interlocutory’, i.e, an ‘interlocutory judgment’ is one which determines some preliminary or subordinate point or plea or settles some step, question or default arising in the progress of the cause but does not adjudicate the ultimate rights of the parties or finally put the case out of Court.”

“Thus a judgment or order passed upon any provisional or accessory claim or contention is in general merely ‘interlocutory’ though it may finally dispose of that particular matter. Distinguishing between judgments and orders, the learned author says at page 5:

“An ‘order’ is the mandate or determination, of the Court upon some subsidiary or collateral matter arising in an action, not disposing of the merits but adjudicating a preliminary point or directing some steps in the proceedings.”

24. The learned Judge also referred to the Common Law Procedure Act, 15 and 16 Victoria, Chapter 76, and stated that the distinction between interlocutory and final judgments was also recognized there. He observed that they were both ‘judgments’ as distinguished from ‘interlocutory orders’ and compared sections 27 and: 140 on the one hand with sections 52, 54 and 222 on the other. He came to the conclusion, therefore, that the word ‘judgment’ in the Letters Patent included not only final judgments, but also preliminary or interlocutory judgments, though not preliminary or interlocutory orders.

25. The result of the decision of the Full. Bench is reflected in the cases that follow. In ‘Sonachalam Pillai v. Kumaravelu Chettiar’, 47 Mad 316 an order of a single Judge of the High Court refusing to stay execution of a decree of a mofussil Court pending an appeal therefrom to the High Court was treated as a judgment within Clause 15 of the Letters Patent and appealable as such. It was held in that case that the definitions of the word ‘judgment’ or ‘decree’ as given in the Code of Civil Procedure were meant for the interpretation of the terms as used in the Code and could not be applied to the words as used in the Letters Patent.

26. In ‘Ananthanarayana v. Rarichan’, 59 Mad 656, an appeal under Clause 15 of the Madras Letters Patent against the order admitting a pauper appeal after excusing the delay was held not maintainable because the order did not end a procéeding; on the contrary, it enabled the proceedings to go on.

27. In ‘Abdul Nabhi Saheb v. Rama-Lakshamamah’ AIR 1948 Mad 371 Gentle, C.J, and Bell, J. held that the order of a single Judge granting stay was a judgment and, if the appellant was successful, then an investigation of the merits of the suit became unnecessary in the trial Court and the decision had the effect of rendering the judgment in second appeal effective. The trial Court in that case dismissed the suit on a preliminary objection without considering the merits. On appeal, the lower appellate Court set aside the dismissal and directed the suit to be remanded for disposal by the lower Court. On second appeal to the single Judge of the High Court against the order of the lower appellate Court, the Judge granted stay of the order of the lower appellate Court pending disposal of the second appeal. Gentle, C.J, observed as follows:

“Here, the order which Rajmannar, J. made was one in an application the subject-matter of which had the view of rendering the judgment effective if obtained. By judgment, for this case, is meant the judgment in second appeal. If the appellant, defendant 7 in the suit, is successful, then an investigation of the merits of the suit becomes unnecessary in the District Munsif's Court and to that end a stay of the hearing of the suit would render the judgment effective.”

28. The learned Judge felt that the matter was covered by the observations of Sir Arnold White, C.J in ‘Tuljaram Row's Case’, 35 Mad 1 (FB) which I have already quoted:

“I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained), namely—an order on an application for an interim injunction or for the appointment of a receiver is a judgment within the meaning of the clause…………I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding.”

29. In ‘Mahomed Ali v. Ambalavana Chettiar’, AIR 1949 Mad 169 Rajmannar, O.C.J, and Rajgopalan, J. struck a slightly different note and held that where the High Court decides that the plaintiff would be entitled to damages for breach of warranty and to enable it to pass a decree directs the trial Court to take fresh evidence that may be adduced by the parties on a certain issue in the case as regards the difference in the price of the goods on the date of receipt and the date of delivery and to send up its findings on the evidence so recorded, the order is not a judgment under Clause 15 of the Letters Patent and no appeal lies from it. The learned Judge relied upon ‘Punnayya v. Parandamayya’, AIR 1927 Mad 317 in which Devadoss and Sundaram Chetty, JJ. ruled that an order passed by a single Judge of the High Court calling for a finding from the lower Court on an issue whether newly framed or not, was not a judgment under Clause 15 of the Letters Patent and no appeal therefore lay. They distinguished ‘Tuljaram Row's Case’, 35 Mad 1 FB.

30. In ‘Krishna Reddy v. Thanikachala Mudali’, 47 Mad 136, an order of a Judge of the High Court sitting on the original side transferring to the High Court a suit from the District Court, Chinglepet, was treated as a judgment within Article 15 of the Letters Patent and was taken to be appealable by Sir Walter Salis Schwabe, C.J and Ramesam, J., though different views were taken in ‘Konbayya v. Official Receiver’. AIR 1951 Mad 676 and ‘Narsa Reddi v. Tar Mahommed’, 51 Mad 330.

31. It would appear that the approved view in Madras takes into account not the form of the adjudication but its effect on the suit or proceeding. All that is necessary is that it must put an end to the suit, proceedings or ancillary matter but should not be merely a step towards obtaining a final adjudication. If it puts an end to the suit, proceeding or ancillary matter, then it is a judgment, even though it may not be a decision which affects the merits by determining some right or liability. Even after the decision in ‘Tuljaram Row's Case’, 35 Mad 1 F.B decisions have not been uniform, as is shown above, but the preponderating opinion has endorsed the definition of Sir Arnold White.

32. This brings me to a consideration of the Calcutta decisions. The leading case is ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’, 17 W.R 364 (Cal). That was an appeal from a decision of Mr. Justice Phear delivered on 13th December 1871 making absolute a rule obtained on the 22nd September last by Mr. Woodroffe on behalf of the Oriental Gas Company calling on the Justices of the Peace for the Town of Calcutta to show cause why a mandamus should not issue directed to them commanding them to join with the Gas Company in referring the case to a Judge of the Calcutta Court of Small Causes to ascertain and determine the amount payable to the Gas Company as compensation for damages occasioned to them by the drainage work and water-works carried on by the Justices under the provisions of Act VI(6) of 1863 of Bengal Council.

33. The learned Judges in the case—Sir Richard Couch, C.J, and Markby, J.—after considering the Madras case reported in ‘De Souza v. Coles’, 3 Mad H.C.R 384, which they considered laid down too wide a test stated the meaning of the term ‘judgment’ as follows:

“We think that ‘judgment’ in Clause 15 means a decision which affects the merits of the question between the parties 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 a part of it, leaving other matters to be determined. Both clauses are provided for in Clauses 39 and 40 of the Charter. An order such as that before us, which only authorizes a proceeding to be taken for the determination of the question between the parties, cannot be considered a judgment.”

34. Two years later in ‘Hadjee Ismail v. Hadjee Mohammad Hadjee Joosub’, 21 W.R 303 (Cal), Sir Richard Couch, C.J and Pontifex, J. had again to consider this question. That was a suit to set aside a release alleged to have been executed in Calcutta under fraudulent representations made by the first defendant and for an account and administration of the estate of a deceased Mohammedan who died intestate in Bombay where he left moveable and immoveable property. Leave was granted to institute a suit in the High Court subject to objection by the defendants. Some of the defendants who were residents of Bombay not having appeared, the Court refused to allow the plaint to be taken off the file on the objection of the first and some other defendants who were subject to its jurisdiction.

35. Against this order of Macpherson, J., an appeal was filed under the Letters Patent. The first defendant urged that by that order leave was granted to the plaintiff to institute the suit in the High Court of Judicature at Calcutta, whereas such leave ought not to have been granted and that the learned Judge was in error in wrongly creating a jurisdiction where none existed. An objection having been taken to the maintainability of the appeal, the matter was considered under Clause 11 of the Letters Patent. Sir Richard Couch observed as follows:

“It was held by the High Court at Madras in ‘De Souza v. Coles’. 3 Mad HCR 384 that an order made under this clause of the Charter was subject to appeal. We may not agree in all the reasons which the learned Judges of that Court gave for their decision but we do agree in the conclusion that this is an appealable order. It is of great importance to the parties. It is not a mere formal order or an order merely regulating the procedure in the suit but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have, and it may fairly be said to determine some right between them, namely, the right to sue in a particular Court and to compel the defendants, who are not within its jurisdiction, to come in and defend the suit; or if they do not, make them liable to have a decree passed against them in their absence.”

36. Another leading case of the Calcutta High Court is the one reported in ‘Ebrahim v. Fuckhrunnissa Begum’, 4 Cal 531, in which Sir Richard Garth, C.J and Markby, J. had to consider whether an appeal lay from a decision upon the settlement of issues that a certain Hibbanamah relied upon by the appellant was invalid. Garth, C.J stated the law to be as follows:

“15th clause of the Charter, upon which the appellant relies says that an appeal shall lie from the judgment of any one Judge of the High Court. I think that the word ‘judgment’ means a decree or decree which decides the case one way or the other in its entirety and that it does not mean a decision or order of an interlocutory character, which merely decides some isolated point, not affecting the merits or result of the entire suit.”

37. Markby, J. said:

“There is some difficulty in reconciling the decisions upon the Letters Patent, but I am inclined to think now that, whereas in this case the decision is of such a nature that it can clearly be questioned in appeal at some time or other, the matter is more one of convenience and procedure than of strict law. I should have been inclined to think that in this particular case the appeal might conveniently have been heard now, but as the Chief Justice thinks that it cannot be heard until the other issues are decided in the Court below, I shall not differ.”

38. Other cases of the Calcutta High Court deal with the matter within the authority of Sir Richard Couch. On one or two occasions there was an attempt to make some contribution to the discussion and it is, therefore, necessary to refer to those cases.

39. In ‘Gobind Lal v. Shib Das’, 33 Cal 1323 Sir Chunder Madhab Ghose, Acting, C.J, and Harrington and Caspersz, JJ. referred to an earlier case of ‘Mst. Brij Coomaree v. Ram-Rick Dass’, 5 Cal W.N 781, where Maclean. C.J, with whom Baneriee and Hill, JJ. concurred, observed as follows:

“In my opinion, the order of the 4th July has decided this very important question, very important in this particular case that notwithstanding the appeal — for although such appeal had not actually been filed when Mr. Justice Stanley's judgment was delivered, it proceeds upon the footing that one was about to be filed immediately—the respondent was entitled to the immediate control of the estate, a decision which, if the appeal be successful, would, as I have already said, possibly render it absolutely infructuous, and the case to my mind, falls within the definition of a ‘judgment’ given by Sir Richard Couch and is consistent with the observations of the Privy Council in the case of ‘Hurrtsh Chunder v. Kali Sundari Debi’, 9 Cal. 482.”

40. From this decision, it would appear as if an order which imperils the ultimate result of the litigation must also be taker to be included in the definition of ‘judgment’, though it does not decide any right or liability in the action between the parties. Naturally, this extension of the definition of Sir Richard Couch was objected to, and we find the objection in ‘Mathura Sundari v. Haran Chandra’, 43 Cal. 857 by Mookerji, J. and in ‘Nagindas Motilal… v. Nilaji Moroba Naik….’, 48 Bom 442. In ‘Ramendra Nath v. Brojendra Nath’, 45 Cal. 111 Mookerjee, J. observed:

“It is plain that the true test to be applied in the solution of the question of the competence of the appeal is, not the form of the adjudication but its effect on the suit or proceeding in which it has been made. Whatever the form of the adjudication may be, there is no doubt that it does, in the present instance, put an end to the suit, so far as the trial Court is concerned. From this standpoint, the adjudication may properly be deemed a judgment, not merely within the test formulated by White, C.J but also within the definition given by Couch, C.J in the ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’, 17 W.R 364 (Cal).”

41. That was a case in which the High Court on its original side refused to allow the plaintiff to proceed in one suit against several defendants on the ground of mis-joinder and gave him time to elect how he would proceed with the suit and which of the defendants he would retain on the record.

42. Other cases in which this matter has been considered are ‘Kali Kristo v. Ram-Chunder Nag’, 8 Cal. 147. In that case, at the hearing of the appeal before a single Judge of the Calcutta High Court the case was remanded to the lower Court for the trial of certain issues of fact, the case being in the meantime retained on the file of the Court. It was held that the order was not appealable under Clause 15 of the Letters Patent.

43. In ‘Toolsee Money Dassee v. Sudevi Dassee’, 26 Cal 361 the refusal to set aside an award was considered to be a judgment within the meaning of Clause 15. In ‘Gopinath v. Moheshwar’, 35 Cal. 1096 an order of remand passed by a single Judge of the High Court under Section 562 of the CPC, 1882 (now Order XLI, Rule 23) was considered to be a judgment within the meaning of Clause 15 of the Letters Patent and it was held that an appeal lay.

44. In ‘Budhu Lal v. Chattu Gope’, 44 Cal 804 an application for sanction to prosecute the plaintiff for making a false claim and a false statement in an application for leave to institute a suit was refused by a Judge of that Court. An application on the Original Side of the High Court for a reversal of the order was made and an order of remand was obtained. The plaintiff appealed against the order of remand. It was held that the order was a judgment. The test laid down by Sir Richard Couch was accepted as useful, though not exhaustive, and Mookheriee, J. in that case referred to his own decision in ‘Mathura Sundari v. Haran Chandra’, 43 Cal 857 (op cit sup.).

45. In ‘Brojogopal v. Amar Chandra’, 56 Cal 135 (F.B), a second appeal was presented out of time and the appellants obtained a Rule calling upon the other side to show cause why the appeal should not be registered. The two Judges composing the Bench differed in opinion. The Rule was made absolute in accordance with the opinion of the senior Judge. From this order an appeal was lodged under clause 15. It was held that a Letters Patent Appeal did not lie. Rankin, C.J held also, though not without considerable doubt, that the mere circumstance that an order puts in peril the finality of a decision given in the respondent's favour does not of itself make the order a judgment within the meaning of Clause 15.

46. On the other hand, in ‘Collector of Dacca v. Gulam Kuddus’, A.I.R 1936 Cal 688, Guha, Bartley and R.C Mitter, JJ. stated that the definition of ‘judgment’ in the ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’, 17 W.R 364 (Cal) must be taken to have received the approval of their Lordships of the Judicial Committee by their decision in ‘Hurrish Chunder v. Kali Sunderi Debi’, 9 Cal 482 (cit. sup.) which affirmed the decision in ‘Kali Sunderi Debi v. Hurrish Chunder’, 6 Cal 594 in which the definition of the word ‘judgment’ contained in the ‘Justices of the Peace Case’ was adopted.

47. Again, in ‘Durgaprasad v. Kanti-Chandra’, 61 Cal 670 an order refusing to stay a suit to which the provisions of section 10 apply, was held to be a judgment within clause 15 of the Letters Patent.

48. In ‘Anwara Khatoon v. Hasan Bibi’, A.I.R 1948 Cal. 171, Mitter, Acting, C.J and Sharpe, J. pointed out that the test laid down by Sir Richard Couch had all along, so far as that Court was concerned, been treated as the correct test in such matters.

49. From an analysis of the above cases, it would appear that according to Sir Richard Couch any decision which affects the merits of the question between the parties determining some right or liability, whether final, preliminary or interlocutory, is a judgment within the meaning of Clause 15 of the Letters Patent. A decision finding a jurisdiction in a Court which it would not otherwise have possessed, is also a decision which must be treated as a judgment. It is also clear from the authorities cites above that an order of remand which undoes the decree which a litigant has obtained in his favour must be treated as a judgment within the clause, though not an order of remand which merely sends down certain issues for the finding of the Court, the case being retained on the file in the meantime in the High Court. It also follows that every order which puts in peril the case of a litigant is not necessarily a judgment if that order is given in interlocutory or ancillary matters.

50. In the Bombay High Court the decision of Sir Richard Couch has consistently been followed. As early as in ‘Sonabai v. Ahmad Bhai’, 9 Bom HCR 398, Sargent Ag. C.J, Bayley and Green, JJ. approved of the definition of Richard Couch. In that case an appeal against the order made by Gibbs, J. making absolute a summons requiring the defendant to produce certain documents for the inspection of the plaintiffs was filed, and a preliminary question raised was whether an appeal lay. Sargent. Ag. C.J referred to the case of ‘De Souza v. Coles’, 3 Mad. H.C.R 384 (cit. sup.) as also the case of the ‘Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.’. 17 W.R 364 (Cal) and approved of the definition of Sir Richard Couch. The other Judges concurred in his opinion.

51. This was followed by Sir Lawrence Jenkins, C.J and Mr. Justice Tyabji in ‘Jehangir v. Secretary of State’, 2 Ind. Cas. 150 (Bom.) and by Sir Basil Scott, C.J, and Mr. Justice Russel in ‘Miya Mohammad’ v. Zorabi’, 2 Ind. Cas. 157 (Bom.) by Heaton, Ag. C.J, and Marten, J. in ‘Narandas Raghunathdas v. Shantilal Bhola-Bhai’, 22 Bom. L.R 1012. In the last case the Acting Chief Justice stated that the definition of Sir Richard Couch was not a definition proper but a mere description, not necessarily exhaustive, and he pointed out that the fundamental characteristic of a judgment is to put an end to the suit.

52. Sir Lawrence Jenkins, C.J and Batchelor, J. in ‘Sonabai v. Tribhuwandas’, 32 Bom. 602 and Chandavarkar and Batchelor, JJ. in ‘Jehangir Cowasjee v. Hope Mills Ltd.’, 33 Bom. 216 again approved of the definition of Sir Richard Couch. See also ‘Ram-Chandra Gangadhar v. Mahadev Moreshwar’, 42 Bom 260, ‘Charandas v. Chhaganlal’, 45 Bom. 428 and ‘Ramanlal Shantilal & Co. v. Chunilal Damodardas’, A.I.R 1932 Bom. 163. In the last mentioned case, Beaumont, C.J, observed that ever since the decision in ‘Miya Mohammad v. Zorabi’, 2 Ind. Cas. 157 (Bom.) (op. cit. sup.) the view which has always prevailed in the Bombay High Court has been that any order affecting the merits of the action between the parties by determining some right or liability is treated as a judgment within clause 15 of the Letters Patent, though an order which merely regulates the procedure in a suit is not such a judgment.

53. Other cases of the Bombay High Court can be found in ‘Jivanlal v. P.R Vakharia & Co.’, 57 Bom. 364, ‘Asian Assurance Co. Ltd. v. Madholal’, A.I.R 1950 Bom. 378 and ‘Vaijayantappa Shirsappa v. Anusaya Waman’, A.I.R 1940 Bom. 196. It may be pointed out that in the last mentioned case Wassoodew, J., though approving of the definition of Sir Richard Couch, also accepted the definition of Sir Arnold White in ‘Tuljaram Row's Case’, 35 Mad. 1 (F.B) as a very good working test. The ‘Dakore Temple Case', A.I.R 1925 P.C 155 was referred to, but the dictum of Rankin, C.J in ‘Brojogopal v. Amar Chandra’, 56 Cal. 135 (op. cit. sup.) was followed.

54. The decisions of the Lahore High Court have uniformly taken the view that a Letters Patent appeal can be filed against an interlocutory judgment provided the judgment of the Court either finally or temporarily decides, in so far as that Court is concerned, any question material in issue between the parties and directly affecting the subject of the suit. This decision was reached on a reconciliation of the definition given by Sir Richard Couch, C.J, in the Calcutta case and the definition of Sir Arnold White, C.J, in the Madras Full Bench case.

55. As early as ‘Gokal Chand v. Sanwal Das’, 1 Lah. 348, these decisions were approved. In that case the defendant, against whom a decree for pre-emption of a house had been passed by the lower Court, presented an appeal to the High Court and prayed that execution of the decree be stayed pending decision of the appeal. The appeal was admitted but stay of execution was refused by a single Judge of the Court and a Letters Patent appeal under clause 10 of the Letters Patent was filed against that order. The learned Judges (Le Rossignol and Bevan Petman, JJ.) dissented from ‘Durga Prasad Nayadu v. Malikarjuna’, 24 Mad. 358 and ‘Mohabir Prosad Singh v. Adhikari Kunwar’, 21 Cal. 473 in which a less extended meaning was sought to be given to the expression ‘judgment’. The learned Judges observed:

“A consideration of these decisions and several others to which references are made in them leads to the conclusion that the term ‘judgment’ as used in the Letters Patent is a very wide one, having a not much narrower connotation than the definition given in the Code of Civil Procedure, and this view receives confirmation from the language employed in Sections 29 and 30 of the Letters Patent which give a right of appeal to His Majesty's Privy Council, subject to certain conditions, from even a preliminary or interlocutory judgment, decree or order. Our conclusion then is that ‘judgment’ in Section 10 of the Letters Patent includes any interlocutory judgment which decides so far as the Court pronouncing such judgment is concerned, whether finally or temporarily any question materially in issue between the parties and directly affecting the subject-matter of the suit.”

56. This was followed by ‘Ruldu Singh v. Sanwal Singh’, 3 Lah. 188 which directly concerned a remand order. In that case the trial Court dismissed the suit as time-barred, but its decree was discharged by the District Judge, who held that the suit was within time under Article 144 of the Limitation Act and remanded the case under Order XLI, Rule 23 of the CPC, for decision on the remaining issues. Against this order of remand an appeal was preferred to the High Court, which was heard by a single Judge, who affirmed the decision of the District Judge and dismissed the appeal. From that decision, the defendants preferred an appeal under the Letters Patent. It was held by Sir Shadilal, C.J (as he then was) and Harrison, J. that in order to decide whether an adjudication should be treated as a judgment within the meaning of Clause 10 of the Letters Patent regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it was made. If its effect, whatever its form may be and whatever be the nature of the civil proceeding in 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 within the meaning of Clause 10 of the Letters Patent.

57. The learned Judges followed primarily the decision in ‘Tuljaram's Case’, 35 Mad. 1 (F.B) and accepted the definition of Sir Arnold White, C.J Sir Shadilal, C.J, considered that the definition given by Bittleston, J. in the first Madras case was a little too wide. He referred to the decision given by Sir Richard Couch in the Calcutta case and felt that even that definition was somewhat narrow. Though the learned Judge stated that it was impossible to lay down any definite rule which would meet the requirements of all the cases, the only thing which could be said was that in determining whether an order constituted a judgment or not, the Court ought to take into consideration the nature of the order and its effect upon the civil proceeding in which it was made. According to the learned Judges in that case, the best definition was to be found in the Madras Full Bench decision.

58. A slightly different approach was disclosed in ‘Shaw Hari Dial & Sons v. Sohna Mal Beli Ram’, I.L.R (1942) Lah. 491 (F.B). By that time the decision of their Lordships of the Privy Council in the ‘Dakore Temple Case’, A.I.R 1925 P.C 155 was available for consideration as well as the dictum of Sulaiman, J. in ‘Horiramsingh v. Emperor’, (1939) F.C.R 159. The learned Judges also took into consideration the decision of the same Judge in ‘Shahzadi Begam v. Alakh Nath’, 57 All. 983 (F.B). The order of the Full Bench was delivered by Dalip Singh, J., with which Din Mohammad and Blacker, JJ. agreed. The learned Judge examined at length all the rulings of the different High Courts and came to the conclusion that though the definition given by Sir Richard Couch was regarded as a classic definition, still even in the Calcutta High Court there was a slight leaning towards the definition given by Sir Arnold White.

59. The learned Judge pointed out that the author of the definition (Sir Richard Couch) himself had occasion to explain his own definition in ‘Hadjee Ismail v. Hadjee Mahomed’, 21 W.R 303 (Cal) in the passage already quoted by me. It was obvious from this that Sir Richard Couch himself concluded that an order which determined the forum in which the suit was to be tried was an order, though interlocutory in character, liable to appeal, thus recognizing that interlocutory judgments which substantially affect the rights and liabilities of the parties in a suit were to be included in the term ‘judgment’ as used in the Letters Patent.

60. The learned Judge thereafter examined all the authorities and pointed out that in ‘Shibba Mal v. Rup Narain’, 10 Lah. 132 Sir Shadilal, C.J, and Broadway, J. had considered the meaning to be given to the Privy Council decision in ‘Dakore Temple Case’, AIR 1925 P.C 155. In the words of the learned Judge:

“The learned Judges there pointed out that the counsel in the case were unable to explain why their Lordships of the Privy Council, having held that the appeal to His Majesty in Council should not have been admitted, proceeded to allow the appeal and set aside the judgments and decrees on the ground that these judgments were incompetent.”

61. The learned Judge gives correctly the basis of their Lordships' decision, namely, that the appeal did not lie to the High Court and the decision of that appeal was therefore of no value. The reason for their Lordships allowing the appeal, which they held did not lie, was the prerogative of His Majesty to do justice in any case. In these two cases, namely, ‘Shibba Mal v. Rup Narayan’, (op. cit. sun.) and the case I am considering, it was clearly pointed out that the remarks of their Lordships were not meant to lay at rest the controversy which had raged in India for over several years. Their Lordships did not mean to define exhaustively the word ‘judgment’ as used in the Letters Patent. The decision of Sir Arnold White was accepted by the Full Bench in this case and the Full Bench approved of ‘Ruldu Singh v. Sanwal Singh’, 3 Lah. 188 (op. cit. sup.) and stated that the best test propounded so far is the test laid down in ‘Tuljaram Row's Case’, 35 Mad. 1 (F.B).

62. In ‘Tolaram Singh v. Fazal Ahmad’, 17 Lah. 606 a single Judge of the High Court ordered the registration of a decree made by a subordinate Judge as a decree of a Revenue Court. An appeal having been taken to two Judges against the order under clause 10 of the Letters Patent, it was held by Addison and Abdul Rashid, JJ. that the appeal was not competent. The learned Judges referred to the “Dakore Temple Case’, A.I.R 1925 P.C 155 and also to ‘Tata Iron and Steel Co. v. Chief Revenue Authority, Bombay’, 47 Bom. 724 (op. cit. sup.) and stated that the appeal was not competent. It appears that their Lordships did not express their dissent from the earlier cases of the same Court but they materially departed from the opinion of Sir Shadilal in ‘Ruldu Singh v. Sanwal Singh’, 3 Lah. 188 (op. cit. sup.).

63. The decision of Addison and Abdul Rashid, JJ. was, however, expressly dissented from in ‘Shaw Hari Dial & Sons v. Sohna Mal-Beli Ram’, I.L.R (1942) Lah. 491 (F.B) (op. cit. sup.) and the decision in ‘Ruldu Singh v. Sanwal Singh’, 3 Lah. 188 was reinstated.

64. The cases in the Patna High Court begin from ‘Munshilal v. Mahanth Ramasis Puri’ 1 Pat. 246. In that case, a decree was set aside by a single Judge of the High Court and the case was remanded. It was held that another Judge of the High Court could not, after an appeal from the order passed after the remand treat the order of remand and the order passed thereon as nullities and restore the original decree. It was held that the decision of the Judge of the High Court sitting alone and setting aside a decree is a judgment within the meaning of Clause 10 of the Letters Patent. Dawson-Miller, C.J, with whom Coutts, J. agreed, observed as follows:

“The appeal was heard by Jwala Prasad, J. The learned Judge found that the decision of Das, J., remanding the whole case for rehearing was based upon a misapprehension because the rent decrees had in fact been considered by Mr. Ross, in his judgment, and, secondly, because although the Record-of-Rights was not on the record in the suit it was the case of both parties that the land in suit was recorded in Tilak's name. He accordingly held that the judgment of Das, J., remanding the case was invalid and, consequently, that the judgment come to by Mr. Ashutosh Chatterjee on remand was also invalid and could not displace the former judgment of the same court. He then held that Mr. Ross's judgment not having been legally set aside must be restored.

With great respect to the learned Judge I am unable to accept his view that it was open to him to call in question the earlier judgment remanding the case for a rehearing. The effect of that judgment was to set aside the judgment and decree come to by the lower appellate court in the plaintiff's favour. It was in my opinion open to the plaintiffs to appeal from-the judgment of Das, J., under section 10 of the Letters Patent. They did not avail themselves of that remedy and the decision cannot be called in question in a subsequent appeal against the decree made on remand. The learned Judge whose decision is now under appeal considered that the decision of this court in ‘Bara Estate Ltd. v. Anup Chandra’, 2 Pat. L.J 663, applied to the facts of the present case.

In the case cited it was held that an order, made by the High Court in second appeal, directing the trial of a certain issue without setting aside the decree of the lower court, was not a judgment from which an appeal lay under the Letters Patent, and, therefore, the propriety of the order could be called in question when the case came back again to the High Court for final determination of the appeal. With that decision I entirely agree, but where the appellate court sets aside the decree appealed from, whether it orders a rehearing or not, the decision in my opinion is a judgment within the meaning of the Letters Patent, whereas an order merely referring an issue for trial by the lower Court before the final determination of the appeal has not been so regarded.

It was no doubt this distinction which induced the Legislature to differentiate between Rules 23 and 25 of Order XLI of the CPC. In the former case, where the decree is reversed on appeal, the decision is appealable under Order XLIII, Rule 1, where an appeal would lie from the decree of the appellate court, in the latter case no appeal is allowed under the Code as an order under Rule 25 is in no way final and can be called in question when the appeal is finally determined after the issue has been decided by the lower court.”

65. In ‘Ajit Choudhuri v. Janaklal Chowdhary’, A.I.R 1924 Pat. 336, a Judge of the High Court, without setting aside the decision of the Lower appellate Court, remanded the case for finding on an issue, with directions to return that finding before finally disposing of the appeal. The order was not treated as a judgment within the meaning of the Letters Patent. It was, however, held in the same case that where the Judge sets aside the decision of the lower appellate Court and orders a retrial by that Court, that decision amounts to a judgment within the Letters Patent, and in such cases an appeal is permissible from the decision. The judgment is that of Sir Dawson-Miller, C.J (with whom Mullick, J. agreed) and he relies upon his earlier decision in ‘Munshilal v. Mahanth Ramasis Puri’, 1 Pat. 246 (op. cit. sup.) and distinguishes the Patna Law Journal case, as he had done before.

66. In ‘Hemendra Lal v. Official Liquidator’, 23 Pat. 24 the appeal under Clause 10 of the Letters Patent was taken from an order of Agarwala, J., dismissing an application for restitution in a proceeding under Section 185 of the Indian Companies Act, 1913. Under Section 185, the Court, after making a winding up order, may require any contributory etc. to pay etc. to the Official Liquidator any money etc. to which the Company is ‘prima facie’ entitled. In that case the company had gone into liquidation and some of its property was to go to the Official Liquidator, and an application under Section 185 was made and was resisted. The application was allowed. From that order an appeal was filed under the Letters Patent and the appeal was allowed. Later, an application for restitution was made and that application was heard by Agarwala, J., who held that Section 144 of the CPC was not relevant and that he was not prepared to exercise his inherent powers under Section 151 of the CPC.

67. A Letters Patent appeal having been filed, it was contended, on the authority of ‘Tata Iron & Steel Co. v. Chief Revenue Authority, Bombay’, 47 Bom. 724 (op. cit. sup.) and the ‘Dakore Temple Case’. A.I.R 1925 P.C 155, that no appeal lay. The learned Judges (Fazl Ali, C.J and Chatterji, J.) observed that in both those cases the Privy Council was required to consider the words ‘final judgment’ in the clause of the Letters Patent which provided for appeals to His Majesty in Council. The learned Judges pointed to ‘Hurrish Chunder v. Kali Sunderi Debi’, 9 Cal. 482 (P.C) (op. cit. sup.) and observed that in that case their Lordships had held that the decision by the Judge appointed to dispose of matters relating to appeals to Her Majesty in Council, refusing to transmit for execution her order restoring a decree was a judgment within the meaning of Clause 15 of the Letters Patent of 1865 and was appealable. Following the latter case, therefore, they overruled the objection that Letters Patent appeal did not lie.

68. A useful discussion of the word ‘judgment’ based on ‘Tata Iron & Steel Co. v. Revenue Authority of Bombay’, 47 Bom. 724 (P.C) (op. cit. sup.) is to be found in the latest case of the Patna High Court in ‘Tobacco Manufacturers (India) Ltd. v. State’, A.I.R 1951 Pat. 29 (F.B). In that case Sarjoo Prosad, J. apparently made (said?) nothing of the difference between the word ‘judgment’ and the words ‘final judgment’ and observed that the use of the word ‘judgment’ or ‘final judgment’ in the eye of law does not bear any different significance and the use of the word ‘final’ as qualifying ‘judgment’ is merely ‘ex cautela’.

69. With all due respect to the learned Judge, this is not borne out by the dictum of, their Lordships to which he has referred, because their Lordships throughout the ruling were considering the merit of a final judgment and the tenor of their Lordships' discussion clearly establishes that there is a distinction between a final and an interlocutory judgment. A better approach to the problem is disclosed, if I may say so respectfully, in the opinion of Shearer. J. to whose decision however, or to the decision of the other learned Judges of the Full Bench, it is not necessary to refer here, inasmuch as the learned Judges were interpreting not Clause 10 of the Letters Patent but certain provisions in the different constitutions of India.

70. In Allahabad, for a considerable time, opinion was governed by ‘Muhammad Naimullah v. Ihasanullah’, 14 All. 226 (F.B) which laid down that second appeals against orders being specifically barred by the Code of Civil Procedure, the word ‘judgment’ could not be held to include an order such as an order of remand against which but one appeal was provided in the Code. Cases of this type are ‘Piari Lal v. Madan Lal’, 39 All. 191 and ‘Gajadhar Prasad v. Md. Abdul Majid’, A.I.R 1923 All. 396.

71. Soon, however, the view in ‘Muhammad Naimullah v. Ihasanullah’, 14 All 226 (op. cit. sup.) was not accepted, particularly in view of what their Lordships had said in the case of ‘Hurrish Chunder’ v. Kali Sundari Debi’, 9 Cal. 482 (PC) (op. cit. sup.). Thus in ‘Ishwari Prasad…(Defendant); v. Sheotahal Rai…(Plaintiff).*’, 48 All. 684 we find a decision of Sir Grimwood Mears, C.J, and Mukerji, J. that an appeal lies from a judgment of a single Judge reversing the decree of the lower appellate Court and remanding the suit for trial on merits. The ‘Dakore Temple Case’, A.I.R 1925 P.C 155 was cited by their Lordships, but was distinguished.

72. Again in ‘Sital Din v. Anant Ram’, 55 All. 326 (F.B) it was laid down by Sir Lal Gopal Mukerji, Acting Chief Justice, and King and Niamatullah, JJ. that the word ‘judgment’ should not be read in a restricted sense and an appeal lies against an order of remand passed by a single Judge under Order XLI, Rule 23 of the CPC. The Full Bench dealt with the ‘Dakore Temple Case’, AIR 1925 P.C 155 and their Lordships pointed out that the Privy Council had clause 39 of the Letters Patent of Bombay in their minds. The learned Judges pointed out that in Clause 39 not only the words ‘final judgment’ are used, but also the words ‘decree or order’ and in Cl. 15 the only word used is ‘judgment’. They concluded, therefore, that when their Lordships of the Judicial Committee said that in order that an appeal might lie from a judgment of the High Court it should amount to a decree, they had Clause 39 in their minds. The learned Judges further observed as to the practice of that Court in the following words:

“We may point out that the practice of this Court has always been to entertain an appeal against an order of remand passed by a single Judge of this Court under Order 41, R. 23 of the CPC”

73. And they referred to ‘Ishwari Prasad v. Sheotahal Rat, 43 All. 684 (op. cit. sup.).

74. The attitude to the problem changes when the case of ‘Shahzadi Begum v. Alakh Nath’, 57 All. 983 (F.B) came to be decided. That Full Bench was composed of Sulaiman, C.J, Niamatullah and Rachhpalsingh, JJ. In that case an order of a single Judge dismissing an application under Section 5 of the Limitation Act and refusing to extend the time was not held to be a judgment. The learned Chief Justice observed that the Letters Patent of the Allahabad High Court were drafted long before even the earlier Code of 1882 was passed, and the word ‘judgment’ used therein could not possibly mean judgment as defined in the existing Code of Civil Procedure. According to him the word ‘judgment’ did not include every possible order, final, preliminary or interlocutory, passed by a Judge of the High Court. The learned Judge considered the earlier authorities of that Court and after quoting the ‘Dakore Temple Case’, A.I.R 1925 P.C 155 observed as follows:

“Of course, their Lordships did not mean to lay down that no appeal would lie under clause 39 of the Bombay High Court Letters Patent except from a decree and not from a final order. That has been made clear by a Full Bench of this Court in the case of ‘Sital Din v. Anant Ram’, 55 All 326 (FB) but their Lordships certainly intended to make it clear that the word ‘judgment’ used in the Letters Patent is not to be taken in its widest scope. No doubt, the Bombay High Court in the case of ‘Ramchandra Gangadhar v. Mahadev Moreshwar’, 42 Bom 260 followed in ‘Nagindas Motilal… v. Nilaji Moroba Naik….’, 48 Bom 442 has taken a view in favour of the appellant, but a contrary view was expressed by a Full Bench of the Calcutta High Court in the case of ‘Gobinda Lal v. Shib Das’, 33 Cal 1323, from which the Bombay High Court dissented. That Full Bench decision, although to some extent doubted in the case of ‘Brojogopal v. Amar Chandra’, 56 Cal 135, has not been overruled by that High Court.”

75. Thereafter this case was followed in ‘Ram Sarup…(Defendant); v. Kaniz Ummehani…(Plaintiff).*’, AIR 1937 All 165 and ‘Lakshmi Narain v. Mirza Mohamad Akbar’. AIR 1939 All 185 till in ‘Gulzari Lal v. Sarju Bai’, AIR 1949 All 604 Malik, C.J and Bhargava, J. struck a slightly different note, when they held that an order determining the question as to who has the right to be brought on the record on the death of a deceased appellant or respondent may amount to a judgment if the decision of that question determines the appeal itself. It would appear, therefore that the opinion in the Allahabad High Court is in favour of limiting the word ‘judgment’ to a decision almost analogous to a decree in a civil suit or appeal.

76. In the Rangoon High Court, in ‘Saya Pye v. Kundinnya’, AIR 1924 Rang 47 there was a submission to arbitration without the intervention of the Court. The award was made by the arbitrator and when it was filed, Rutledge, J. on the Original Side held that the award was bad for misconduct of an arbitrator. The learned Judge remitted the matter for a fresh award to be made. Against the decision of the single Judge a Letters Patent appeal was filed, and it was held that inasmuch as the order to a certain extent decided the rights of the parties, namely, that the award in question was bad and the submission was good, the order must be treated as a judgment. Sir Richard Couch's dictum and the opinion of Sargent. Ag. C.J, in the earliest Bombay case were approved.

77. In the next year, in the case of ‘Yeo Eng Byan v. Beng Seng & Co.’, AIR 1925 Rang 43 in a suit for dissolution of partnership and for accounts a Commissioner was appointed after a preliminary decree. The Commissioner sought for certain directions from the Court, and directions were given. When an appeal was filed against the order of the Court, the learned Judges held that the order did not amount to a judgment. It was observed in the case that such an order must be a decision which affects the merits of the question between the parties by determining some right or liability & that the order must have direct reference to the suit that is before the Court and must not merely have the way or facilitate the decision of the case. In that case, Brown, J. also emphasized that the order was not a final decision of any rights between the parties.

78. In ‘I.E Abowath v. A.E Abowath’, AIR 1928 Rang 110, there was again an award filed in Court, but a single Judge holding that by reason of material irregularities in respect of the conditions precedent to the filing of the award, the award was bad, returned it. An appeal was filed from the decision of the learned single Judge and it was held that no appeal lay. Emphasis was again laid on the fact that the learned Judge had not purported finally to decide any rights between the parties but had only paved the way for a proper filing of the award.

79. The next case, ‘Chidambaram Chettyar v. N.A Chettyar Firm’. AIR 1929 Rang 41 (FB) contains an admirable analysis of the cases that had taken place till that date. Curiously enough, it does not refer to the ‘Dakore Temple Case’, (AIR 1925 P.C 155) as having laid down finally the law on the subject. The opinion given in ‘Yeo Eng Byan v. Beng Seng & Co.’, (AIR 1925 Rang 43) (op. cit. sup.) was approved and it was observed that the keynote of the whole question is whether the order had the merit of finality or not. The opinion of Sir Richard Garth. C.J, in ‘Ebrahim v. Fuckhrunnissa Begum’, 4 Cal 531 was mainly relied upon.

80. These cases were followed by a Full Bench of seven Judges in ‘Dayabkai Jiwandas v. Murugappa Chettiar’, 13 Rang 457. Page, C.J, who delivered the judgment in that case, did not examine the authorities for the reasons which he stated as follows:

“Now, the construction which has to be placed upon the term ‘judgment’ in the Letters Patent is so simple, plain and efficacious that it is difficult to understand why it has not hitherto found favour with any other High Court in India but as our view of the meaning and effect of the term ‘judgment’ differs from that which is held by any other High Court and in our opinion, the High Courts in India are not at liberty, having regard to the decisions of the Judicial Committee, to construe the word ‘judgment’ in any other sense, it would be a work of supererogation to analyse the numerous decisions upon this question. Their number is legion, and we are told that nearly 200 cases were cited at the Bar during the hearing of the Reference. In the circumstances, the effect of discussing these decisions in detail would, I apprehended, be merely to lengthen the judgment and to shorten the patience of those who peruse it.”

81. As a result of this, the decision in that case is necessarily brief, regard being had to the entire history of the question and the controversy which has gone on. The learned Chief Justice concluded that in the Letters Patent of the High Court the word ‘judgment’ means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. The term ‘suit’ in the Letters Patent includes suits instituted by a plaint or by an Originating Summons in the manner prescribed under the rules of that Court. The learned Chief Justice then goes on to make a difference between a final judgment and a preliminary or interlocutory judgment on the same lines in which that distinction is drawn in England. He then states that all other decisions are ‘orders’ and are not ‘judgments’ under the Letters Patent and appealable as such. He observes that the view which he has taken of the meaning and effect of the term ‘judgment’ in the Letters Patent is in consonance with the opinion that has been expressed by the Judicial Committee of the Privy Council in three cases, and he refers to the ‘Dakore Temple Case’, (AIR 1925 P.C 155): ‘Tata Iron & Steel Co. v. Revenue Authority of Bombay’. (47 Bom 724) (op. cit. sup.) and ‘Mt. Sabitri v. Savi’, 48 Cal 481 (PC). He concludes that in these three cases the Judicial Committee have plainly laid down that the term ‘judgment’ in the Letters Patent of the High Court means a ‘decree’ and not ‘order’, in the strict sense in which those terms are understood and defined. He goes on to say that if only decrees are appealable, orders cannot be appealable, and he cites Order XLIII, Rule 1 of the CPC as prohibiting a second appeal. The learned Judge does not discuss the authorities which were based on the definition given by Sir Richard Couch or that given by Sir Arnold White. He is of opinion that the definition given by Sir Richard Couch is “too obscure to be of much value” & that the words ‘by determining some right or liability’ “of necessity provoked criticism and invited trouble”. According to him, the definition given by Sir Arnold White

“involved two inconsistent propositions and for that reason the definition had to be placed on occasions in a crucible and subjected to a process of refinement.”

82. He, therefore, advocates that the decision given by the Rangoon High Court is the best; and since it has the approval indirectly of the Privy Council in the three cases to which he has referred, it is not necessary to discuss the matter any further.

83. Now, what did Page, C.J, and the six learned Judges decide was the meaning? The case involved an order by a single Judge transferring certain suits from the District Court to the High Court. According to the learned Judge, the word ‘judgment’ is used in contradistinction to ‘order’. By ‘judgment’ is meant a “decree” as understood in the Code of Civil Procedure. The learned Judge concedes that such judgments may be preliminary or interlocutory, that is to say, the word includes preliminary or interlocutory decree, but no more. The learned Judge holds that the right of appeal against ‘orders’ not being given by the Letters Patent and being barred under Order XLIII, Rule 1, read with Section 104 of the CPC, there can be no appeal except against second appellate decrees. The learned Judge, if I may respectfully point out, overlooked three cases of the Judicial Committee, viz: ‘Harrish Chunder v. Kali Sundari Debia’, 9 Cal. 482 (PC); ‘Rahimbhoy Habibbhoy v. C.A Turner’, 15 Bom 155 (PC) and ‘Abdul Rahman v. D.K Cassim & Sons’, 11 Rang 58 (PC), to which I shall refer when I come to deal with all the cases of the Judicial Committee.

84. It is significant that in ‘Ebrahim Mohammad Bodi v. K. Ba Gyi’, AIR 1941 Rang 69 and ‘U Ba San v. U Ya’, AIR 1941 Rang 199 an attempt was made to distinguish the Full Bench case and to follow the Madras decision. This attempt was, however, negatived in M. Nagoor Gani v. A.K.A.C.T.A.L.C Chettiar’, AIR 1941 Rang 227 (FB) by a Bench of five Judges who held somewhat reluctantly that they were bound by the decision of the Full Bench of seven Judges in ‘In Re Dayabhai Jiwandas v. Murugappa Chettiar’, (13 Rang 457 FB) (op. cit. sup.).

85. This brings me to the decisions which have taken place in this Court. An examination of these cases would show that in the earliest case, ‘Secretary of State v. Mt. Geeta’, ILR (1939) Nag 124, the learned Judges (Stone, C.J and Bose, J.) did not apply the Privy Council ruling to the interpretation of clause 10. Their Lordships, after quoting the ‘Dakore Temple Case’, AIR 1925 P.C 155 observed as follows:’

“We do not find it necessary to enter into a consideration of whether from a sentence in ‘S.J Bhogilal v. Dakore Temple Committee’, (AIR 1925 P.C 155) one is bound to hold that not only under Clause 29, but also under Clause 10 the term ‘judgment’ is restricted to decree because our decision is not in any way based on any such conclusion.”

86. The case dealt with an award in a Land Acquisition case, and the learned Judges held that the award was not a ‘judgment’ or a decree or even an order.

87. It was only when the same Division Bench considered a case of a Letters Patent appeal against an order rejecting an application for review that their Lordships felt impelled to apply the Privy Council case because of certain observations of Sulaiman, J. in ‘Horiram Singh v. Emperor’, (1939) FCR 159 at p. 168. They stated the law in the following words:

“We apprehend that the power to appeal from a single Judge exercising second appellate jurisdiction to a Bench is intended to be restricted to cases where the decision arrived at is final.” ‘Kanhaiya v. Hiraji’, ILR (1942) Nag 41 at p. 44.

88. I need not refer to the Full Bench case of ‘Madhukar v. Sati Godawari Upasani Maharaj of Sakori’, ILR (1940) Nag 141 (FB) because the point decided by the Full Bench was whether leave was necessary for judgments other than appellate judgments of a single Judge.

89. The matter assumed a more concrete shape when ‘Ganpatrao v. Gangadhar’, ILR (1943) Nag 453 came to be decided. In that case a stay of execution was granted and though the decree-holder applied to get the order vacated, the learned single Judge refused to vacate the stay. A Letters Patent appeal was filed and it was held by Grille, C.J and Puranik, J. that such an order does not amount to a judgment within the meaning of Clause 10 of the Letters Patent. The learned Judges referred to the ‘Dakore Temple Case’, (AIR 1925 P.C 155) as also to ‘Sabitri Thakurain v. Savi’, 48 Cal 481 (P C); ‘Tata Iron & Steel Co. v. Revenue Authority of Bombay’, (47 Bom 724) (op. cit. sup.) and ‘In Re Dayabiiai Jiwandas v. A.M.M Murugappa Chettiar’, (13 Rang 457 (F B)). They followed these cases and dissented from ‘Sonachalam Pillai v. Kumarvelu Chettiar’, 47 Mad 316 and ‘Gokal Chand v. Sanwal Das’, 1 Lah 348.

90. The learned Judges also referred to an unreported case of ‘Eknath v. Gopalrao’, L.P.A No. 3 of 1940 D/- on 27-8-1940 (Nag) and based their decision or that case. It appears that the learned Judges in that case held that the interpretation of the term ‘judgment’ in the Letters Patent must be uniform and in all places it means a decree.

91. After this, all other cases of this Court were based upon these two rulings viz: the one last examined and the decision in the Letters Patent appeal. ‘Jagannath v. Municipal Committee, Khandwa’, ILR (1944) Nag 827 involved the consideration whether a Letters Patent appeal could be filed against an order passed by a single Judge in a reference under Section 83(2) of the C.P Municipalities Act. The learned Judges held in that case that such an order is merely advisory, and not even final, and therefore was not a judgment within the clause 10 of the Letters Patent. ‘Ganpat Rao v. Gangadhar’, ILR (1943) Nag 453 and ‘Eknath v. Gopalrao’, L.P.A No. 3 of 1940 (Nag) were relied upon. With regard to an advisory opinion, the dictum of Lord Atkinson in the ‘Tata Iron & Steel Co. Case’, (47 Bom 724 P.C) was referred to, to the effect that an advisory opinion is not an executive document directing something to be done or not to be done. That would have been sufficient for the decision of that case.

92. In ‘Kunwarlal Singh v. Smt. Umadevi’, ILR (1945) Nag 286 Grille, C.J and Sen, J. had to consider a case in which a Letters Patent appeal was filed against the order of Niyogi, J. determining who were the legal representatives of a deceased party. Their Lordships once again referred to ‘Ganpatrao v. Gangadhar’, (ILR (1943) Nag 453) (op. cit. sup.) and the Letters Patent appeal above referred to and observed as follows:

“This Court has held consistently following the dictum of their Lordships of the Privy Council in Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 P.C 155 that an appeal of this nature will not lie as the interlocutory order appealed from is not a decree, and that the term ‘judgment’ referred to in the Letters Patent means in civil cases a decree. In ‘Ganpatrao v. Gangadhar’, reference was not made to a decision intermediate between that case and ‘Eknath v. Gopalrao’, L P A No. 3 of 1940 (Nag), namely, ‘Kanhaiya v. Hiraji’, (ILR (1942) Nag 41). In it a Division Bench laid down that although the question what a judgment meant was not considered in ‘Secy. of State v. Mst. Geeta’, ILR (1939) Nag 124 as the point did not really arise for determination, it must now be held in view of the dissenting judgment of Sulaiman, J. in ‘Horiram Singh v. Emperor’, AIR 1939 F C 43 that it must be taken as settled that the term ‘judgment’ in the Letters Patent of a High Court means in civil cases a decree and not a judgment in the ordinary sense.”

93. The Teamed Judges noted that there was a conflict about the interpretation of the ruling of their Lordships and observed that Rangoon and Allahabad High Courts were on one side and Lahore, Bombay, Calcutta and Madras High Courts were on the other side. They, however, preferred the view propounded in the Allahabad High Court and based their decision on ‘Beni Madho Rao v. Sri Ramchandraji’, ILR (1937) All 381.

94. In ‘Kunwarlal Singh v. Smt. Umadevi’, ILR (1946) Nag 482 Pollock and Sen, JJ. had to deal with an application for leave to appeal to His Majesty in Council against the decision to which we have last referred, viz: ‘Kunwarlal Singh v. Shrimati Umadevi’ ILR (1945) Nag 286. Their Lordships referred once again to the rulings which have been examined earlier and reiterated that the term ‘judgment’ in the Letters Patent means in civil cases a decree. Leave was therefore refused.

95. Then follow two cases which are reported in 1947. In ‘Bhiwara v. Renuka’, ILR (1947) Nag 51 there was an order appointing a receiver in execution proceedings and it was held that such an order, though appealable under Order XLIII, Rule 1(r) of the CPC, was not a judgment within the meaning of clause 10 of the Letters Patent. An examination of most of the authorities again took place and as a final result the case in the ‘Dakore Temple Case’, (AIR 1925 P.C 155) was applied. Again, in ‘Shanker Rao v. Kalyanji Bhai’, ILR (1947) Nag 351 this Court held that an order dismissing an appeal from an order (refusing to extend time for payment of the amount due under a preliminary mortgage decree for foreclosure was not a decree within the meaning of section 2(2) of the CPC, but was an order as defined under Section 214 of the Code and that it was thus not a judgment within Clause 10 of the Letters Patent. Their Lordships explained at length the case of their Lordships of the Privy Council reported in ‘Hurrish Chunder v. Kali Sundari’, (9 Cal 482 PC) (op. cit. sup.) and held that it did not apply. I shall have occasion to refer to that decision later.

96. In 1948 we have one case of this Court, i.e, ‘Ratanlal v. Gajadhar’, ILR (1948) Nag 690 decided by Bose, J., as he then was, and Mangalmurti, J. In that case appeal was sought to be brought against an order under Order XLI, Rule 21 of the CPC passed by the single Judge on second appeal refusing to set aside an ex parte decree passed by the Court of first instance. It was held, following the decisions to which I have referred and ‘Ratanlal v. Kedermal’, L.P.A No. 10 of 1944 D/- on 4-12-1944 (Nag) that the term ‘judgment’ in the Letters Patent means a decree and the ‘order’ was held to be not appealable.

97. The decision in ‘Eknathrao v. Gopalrao’, L.P.A No. 3 of 1940 (Nag) was reported by the Nagpur Law Journal in 1947 at page 26. That concerned an order refusing permission to appeal in ‘forma pauperis’ and it was held that inasmuch as the order was not a decree, no Letters Patent appeal could be filed against it. The learned Judges (Stone, C.J and Bose, J.) noted the sharp difference of opinion existing on this point but felt bound by their Lordships' decision in the ‘Dakore Temple Case’, (AIR 1925 P.C 155) as explained in the Full Bench of the Rangoon High Court, viz: ‘In Re Dayabhai Jiwandas v. Murugappa Chettiar’, (13 Rang 457 FB) (op. cit. sup.).

98. In ‘Dr. Pandit v. Purushottam Vithal’, L.P.A No. 5 of 1950 (Nag) the learned Chief Justice and myself had occasion to refer to some of these decisions and we indicated there that the decision of their Lordships was not an authority for defining the term ‘judgment’ as used in Clause 10 of our Letters Patent. We did not refer to the Nagpur cases ‘in extenso’ because the point there was simple and arose out of an election dispute under the C.P Municipalities Act of 1922. Certain election petitions were made to the Additional District Judge, Yeotmal, and the contention was that they had not been made to the proper Judge within the time allowed. The learned Judge before whom the petitions were filed came to the conclusion that under the relevant rules it was the Civil Judge, Class I, who had been empowered to entertain and hear such petitions, not as a Court, but as a ‘persona designata’. Hence he rejected those petitions with costs because, according to him, there was no provision in the rules for the return of such petitions for presentation to the proper tribunal.

99. From that decision two appeals were filed in the High Court. They were heard and disposed of by Rao, J. who allowed them. The learned single Judge of this Court came to the conclusion that only the Civil Judge, Class I, had been specially empowered by the Government to entertain and hear such applications and hence the applications originally filed before the Additional District Judge, Yeotmal, had not been properly presented and the Additional District Judge ought to have returned them for presentation to the proper authority, viz., the Civil Judge, Class I. Before the learned Judge another objection was taken as to the competency of the appeals because no deposit by way of security for costs was made at the time of the presentation of the appeals and the appeals were therefore liable to be dismissed under sub-rule (3) of Rule 22 of the Municipal Election Petition Rules, 1947. On this point also the learned Judge held that the rule was ultra vires and the preliminary objection on the ground of failure to deposit was without substance.

100. In the Letters Patent appeal the objection was taken that no appeal lay against an order of remand and that the Bench was incompetent to hear the appeal. This contention was negatived and the Bench reversed, on merits, the order of the learned single Judge. It was also held, differing from the learned single Judge, that the appeals in the High Court were not competent because the security deposit in each case had not been made, it was also held that the making of a rule asking for a deposit was not a clog upon the right of appeal but was merely procedural — a proposition which cannot be questioned after their Lordships' dictum in ‘Sabitri Thakurain v. Savi’, 48 Cal 481 where their Lordships say:

“The High Court's order as to security for costs is not a limit on the right to appeal, nor does it take the right to appeal away, but it is a rule of procedure now applicable to the appeal under the Letters Patent under the words “any law for the time being in force”, which are contained in section 104.”

101. Much of what has to be said now by me has already been stated in the decision in the Letters Patent Appeal, and but for the constitution of this Full Bench, there would be no need to go so elaborately into the matter.

102. One would not expect that there would by any occasion for the Federal Court to discuss the meaning of the word ‘judgment’ as used in the Letters Patent. The appellate powers of the Federal Court extended only to constitutional questions. But by reason of the wording of Section 205 of the Government of India Act 1935, that Court was required to expound the meaning of the term ‘Judgment’ and Sulaiman. J. in ‘Horiram Singh v. Emperor’. 1939 FCR 159 discussed the leading authorities on the subject including those which dealt with the term as used in the Letters Patent. His Lordshin there referred in particular to ‘Ebrahim v. Fuckrunnissa Begum’. 4 Cal 531 and his own decision in ‘Shahzadi Begum v. Alakh Nath’, 57 All 983 (F B) and finally observed that after the ‘Dakore Temple Case’, (AIR 1925 PC 155) there can be no doubt that the term ‘judgment’ in the Letters Patent means a decree.

103. The observations of Sulaiman, J. were obiter and were not concurred in by Gwyer, C.J and Varadachariar, J. All the same, much reliance has since been placed upon the dictum of Sulaiman, J., particularly in this High Court. It is significant that in ‘Venugopala v. Krishnaswami’, AIR 1943 FC 24, in spite of the observations in the ‘Dakore Temple Case’, (AIR 1925 PC 155) and the dictum of Sulaiman, J., the Federal Court entertained an appeal, though observing at the end:

“On one point we wish to reserve our opinion. The order of the High Court only held that the lower Court, had jurisdiction in the matter and directed it to proceed with the trial of the suit. This is clearly not a ‘final order’ within the meaning of Section 205 of the Constitution Act c.f ‘Abdul Rahman v. D.K Cassim & Sons’, 11 Rang 58. It may be a question whether or not it is a ‘judgment’ so as to be appealable under that section. If a narrow interpretation should be placed upon the word ‘judgment’ limiting it like ‘decree’ to a determination of the rights of the parties in controversy in the suit, c.f ‘Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 PC 155, it would be open to doubt whether this appeal was competent. But as no objection to the maintainability of the appeal was taken on behalf of the respondent and as we are dismissing the appeal on the merits, we express no opinion on the question of appealability. We have however thought it safer to make this reservation so as to avoid being understood to have decided by implication that an appeal would lie in such circumstances.”

104. From this it would appear that the Federal Court entertained some doubt about the matter, inasmuch as there would have been no need to discuss the merits of the appeal which on these dicta would have been clearly incompetent. I, therefore, do not consider myself bound by that decision and I say this with all the deference which is due to such an eminent authority.

105. Other cases of the Federal Court unfortunately deal with the meaning of the term ‘judgment’ as used in Section 205(1) of the Government of India Act, 1935. In ‘Kuppuswami Rao v. The King’. AIR 1949 FC 1 the Federal Court indirectly approved of the decision of Sulaiman. J. in ‘Horiram Singh's Case’, (1939 FCR 159), but only in relation to the meaning of that term as used in Section 205 of the Government of India Act, 1935. The learned Judges discuss the meaning of the term ‘judgment’ in that case and state as follows:

“It is next necessary to ascertain the meaning of the words ‘judgment and decree’. In England in civil actions a decree is understood to be the same as a judgment. If so as there may be a preliminary decree, there may be a preliminary judgment. In ‘Maori King (Cargo Owners) v. Allen’, (1895) 1 Com Cas 104 Lord Esher, M.R stated that an order declaring rights is equivalent to a judgment. It may be either a final or a preliminary and therefore interlocutory Judgment. In ‘Onslow v. Land Revenue Commissioners’. (1890) 25 QBD 465 Lord Esher M.R stated that a judgment is considered a decision in an action of a previously existing liability and every other decision of a Court is an order. These and other English decisions make it clear that in England when the word judgment or decree is used, whether it is ‘preliminary or final, it means the declaration’ or final determination of the rights of the parties in the matter brought before the Court……….”

“In India, for civil suits, the words judgment and decree are defined in Section 2 of the CPC, 1908. A judgment means the statement given by the Judge on the grounds of a decree or order passed by the Court. A decree is defined as the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in suit and may be either preliminary or final.”

“As a judgment is only the grounds for an order, it is not the order, and this distinction is maintained by omitting the word ‘judgment’ from Section 109 of the CPC, which deals with the right of appeal to the Judicial Committee from the High Court. In that section a right of appeal is given against the decree or final order only. The definitions given in the Code are, however, for the purposes of the Code only. In our opinion, the decisions of the Courts in India show that the word ‘judgment’, as in England, means the determination of the rights of the parties in the matter brought before the Court…….”

“Our attention was called to clause 39, Letters Patent of the High Courts of Calcutta, Bombay and Madras which provides for appeals to His Majesty in Council from “any final judgment, decree or order” and it was urged that in the absence of the qualifying word, ‘judgment’ in Section 205(1) of the Constitution Act must be held to include a preliminary or interlocutory judgment and that the order now under appeal fell under that category. We are unable to accede to this view. In our opinion, the term ‘judgment’ itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case it cannot cover a preliminary or interlocutory order.”

106. The omission of the word ‘final’ before the word ‘judgment’ in Section 205(1) of the Government of India Act may have no special significance because both the Letters Patent Clause 39 and Section 205 of the Government of India Act were concerned with an appeal to the Privy Council and the Federal Court, and not an appeal in the High Court itself. What may be said of a final Court like the Privy Council or the Federal Court is not true necessarily of an appeal in the High Court itself. I do not, therefore read these observations as limiting the meaning of the term ‘judgment’ in Clause 15 or 10, as the case may be, of the Letters Patent to final decrees.

107. ‘Mohammad Amin Bros. Ltd. v. The Dominion of India’, AIR 1952 FC 77 which followed the last case, does not materially add to the discussion, and it is also connected with the interpretation of Section 205 of the Government of India Act which, as already stated above, provides for an appeal to the Federal Court and not an appeal in the High Court itself.

108. This brings me to an analysis of the Privy Council Judgments which deal with this matter. The earliest case on the subject is ‘Nathoobhoy Ramdass v. Mooljee Madhowdas’, 2 Moo Ind App 169 (PC). In that case their Lordships pointed out the differences which exist between the Courts of Equity and the Courts of Common Law in the matter of designation of their orders in actions brought before them. Their Lordships were then considering the Charter of Justice of Bombay and one of the objections was that the appeal which was brought was not competent because the ‘determination’ against which it was brought was not of a final character, i.e, it did not settle some right or impose some duty. Their Lordships observed as follows:

“One objection was that, under the Charter of Justice of Bombay, it is not competent to appeal against any determination which is not of a final character, which does not settle some right or impose some duty. The Charter of Justice of Bombay is, as nearly as may be, a transcript of that of Madras, of the 33rd Geo. III. The Charter of Madras follows that of Bengal, of the 13th Geo, III. c. 63, S. 18, with this difference, that liberty is given to appeal against any “judgment or determination” of the Supreme Court of Madras, whereas, the liberty to appeal is given in the Calcutta Charter against any “judgment, Decree, Order, or rule” afterwards varying the terms to “judgment”, “Decree”, or “Decretal order”. In other respects the provisions in each are substantially the same, and we are all of opinion, that the word “determination” is an expression at least equivalent to the terms used in the Calcutta Charter; and as an appeal undoubtedly lies from all Decrees or Decretal Orders in the Equity side of the Supreme Court at Calcutta, it does equally from every Decree or Decretal Order on the Equity side of the Supreme Courts of Bombay and Madras.

“The context of all the three Charters shows that the appeal is not confined to cases in which some right or duty is finally decided; and the clause limiting the value in dispute to ten thousand Pagodas does not apply to the value of the matter in dispute involved in the Order, but to the subject of the suit itself.

“But then it is said, that this finding of the Court on its Common law side, in the nature of a verdict, is a “determination” which may be directly appealed from. Undoubtedly such a verdict in a Common law suit might be indirectly appealed from, in an appeal against the judgment in that suit, which is founded on that verdict, the evidence, as well as the finding, being brought up as part of the proceedings, and included in the transcript. But the verdict only, prior to judgment being given, could not be appealed from in a Common law suit; nor can this verdict on an issue directed from the. Equity side, as a determination in a Common law suit.”

109. It might be observed here that the intention underlying the use of the compendious phrase “judgment, decree or order” was to provide for an appeal to the Privy Council in all cases whether the decision was on the Equity side or on the Common law side. In India that distinction is apparent when we notice that in the Code of Civil Procedure the word ‘judgment’ has advisedly been left out while in the Letters Patent the word ‘judgment’ is included.

110. The Code of Civil Procedure gives the statutory right of appeal, while the Letters Patent creates other jurisdictions. One reason may be, as pointed out by the Federal Court, that the word ‘judgment’ has a special signification in the Code of Civil Procedure, but the Letters Patent by using the compendious, phrase rather emphasise the aspect to which their Lordships adverted in the case to which I have just referred.

111. It is true that in so far as the Privy Council was concerned, the intention always was to give an appeal against a final determination and not interlocutory orders; but even so, appeals were allowed against orders though not final in themselves, which decided finally the controversy between the parties. Instances of those orders are to be found in ‘Rahimbhoy Habibrhoy v. C.A Turner’, 15 Bom. 155 P.C and ‘Saiyid Muzhar Hossein v. Mst. Bodha Bibi’, 17 All 112 (P.C) which were cases of remand and interlocutory judgments. Later, however the Privy Council slignuy departed from this view, when in ‘Abdul Rahman v. D.K Cassim & Sons’, 11 Rang. 53 (P.C) they adverted to the change in the wording of the sections of the CPC. The position is now met by making a provision in the Letters Patent as also by cl. (c) in Section 109 of the CPC, which covers such a case.

112. In ‘Abdul Rahman v. D.K Cassim & Sons’, 11 Rang. 58 (P.C) (op. cit. sup.) a person brought a suit for damages but became insolvent during the pendency of the suit. The suit could not go on since the final assignee failed to furnish security. The appellate Court, however, held that the claim being one for damages did not vest in the Official Assignee and reinstating the suit, remanded it for trial on merits. A certificate was granted by the High Court and the objection was that the order was neither a decree nor a final order within section 109(a) and not appealable as such. Their Lordships observed that under the Code of Civil Procedure the order was an ‘order’ and not a decree.

113. Their Lordships further held that it was not a final order, distinguishing ‘Rahimbhoy Habibbhoy v. C.A Turner’, 15 Bom. 155 (P.C) (op. cit. sup.) and ‘Saiyid Muzhar Hossein v. Mst. Bodha Bibi’, 17 All. 112 (P.C) (op. cit. sup.). It is, however, significant that at least as regards the former their Lordships held that “an appeal to His Majesty in Council would have lain as of right under the provisions of the present Code.” In the second case, their Lordships remarked that if the effect of the appellate Court's decree had been merely to remand the case for trial on the points, different considerations would have applied. Their Lordships thought for this reason that neither of these authorities applied to the case before them.

114. Their Lordships then considered the case in ‘Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand’, 47 Cal. 918 (P.C) and observed that the case they were considering approximated to it and in which the certificate was held to be incompetent, because the order was not final. Their Lordships pointed out that it was not sufficient that the order made “went to the root of the suit”, namely, the jurisdiction of the court to entertain it. They stated that “the finality must be a finality in relation to the suit” and that

“if after the order the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under section. 109(a) of the Code.”

115. From these observations it is quite clear that their Lordships were considering the matter from the point of view of the Code of Civil Procedure. They were not considering it under the Letters Patent. The omission of the word. ‘judgment’ in the Code of Civil Procedure, under which the appeal was claimed, did not require the interpretation of that term, and in the Letters Patent the use of the words ‘final judgment’ makes it abundantly clear that such an interlocutory judgment could not have been appealed from, except on leave given by the High Court at its discretion under the Letters Patent.

116. The case in ‘Ramchand Manjimal v. Goverdhandas’, 47 Cal. 918 (P.C) (op. cit. sup.) dealt with an order refusing stay. Such an order was not treated as a ‘final order’ and their Lordships laid down the meaning of the expression ‘final order’ following ‘Salaman v. Warner’, (1891) 1 Q.B 734 as an order which finally disposes of the rights of the parties.

117. In ‘Sabitri Thakurain v. Savi’, 48 Cal. 481 (P.C) their Lordships after holding that the provisions of Section 104 of the CPC did not affect clause 15 (here clause 10) of the Letters Patent, went on to say:

“Section 15 of the Letters Patent………… Expressly provides an appeal to the High Court's appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction………”

118. This cannot be taken to incorporate a definition of the term ‘judgment’.

119. This leaves for our consideration only three Privy Council cases, one of which deals with the clause of the Letters Patent providing, for appeals to the High Court and two deal with-the term ‘judgment’ as used in the clause allowing appeals to the Privy Council.

120. In ‘Hurris Chunder v. Kali Sunderi Debt, 9 Cal. 482 (P.C) the decision of a learned single Judge appointed to dispose of matters relating to appeals to Her Majesty in Council, who refused to transmit for execution her order restoring a decree was treated as a judgment within the meaning of section 15 of the Letters Patent and as such appealable to the High Court. Their Lordships in that case observed that the action of the single Judge was not ministerial but judicial and that an appeal lay from his ‘order’ to the High Court, inasmuch as if that order remained, it would entirely conclude the rights of the decree-holder to an execution in his suit.

121. This case has on occasions been attempted to be distinguished. It is clear that their Lordships accepted the contention that it was a final order and that by implication such final orders come within the definition of the term ‘judgment’ as used in the Letters Patent. It is true that an interlocutory order is certainly not one which can be comprehended in their Lordships' dictum but it is clear that an order which, if it remained, would entirely conclude the rights of a party to an action was included in the definition of the term ‘judgment’.

122. This brings me to ‘Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority of Bombay’. A.I.R 1923 P.C 148. That was a case in which an appeal was sought to be taken to the Privy Council against a decision of the High Court of Bombay made under the provisions of the 51st section of the Income-tax Act, 1918. Their Lordships' decision turns upon the nature of the order made by the High Court on a reference to it under the Income-tax Act. Their Lordships held that the decision made by the High Court is only advisory and not in the proper sense of the term a judgment, and much less a final judgment or order.

123. In dealing with this question their Lordships cited a number of English authorities as to the meaning of the term ‘final judgment’. Their Lordships observed that a final judgment as understood in English litigation is nothing more than that there should be a proper ‘litis contestatio’ and a final adjudication between the parties to it on merits. They relied for this proposition on the dictum of Lord Selbourne in ‘Ex Parte Moore’, (1885) 14 QBD 627. Their Lordships further referred to ‘Onslow v. Commissioners of Inland Revenue’, (1890) 24 Q.B.D 584 where Lord Esher, relying upon the dictum of Cotton, L.J, in “Ex Parte Chinery’, (1884) 12 Q.B.D 342 said:

“I think we ought to give the words ‘final judgment’ in this sub-section their strict and proper meaning, i.e, a judgment obtained in ‘an action’ by which a previously existing liability of the defendant to the plaintiff is ascertained and established, unless there is something to show an intention to use the words in a more extended sense.”

124. Lord Esher goes on to say in the same case that there is an inherent distinction between judgments and orders and that the words ‘final judgment’ have a professional meaning, by which expression is meant that a judgment is a decision obtained in an action and any other decision is an order.

125. Their Lordships further pointed out that the word ‘judgment’ is properly used in many different senses

“as when one says a certain man is a man of sound judgment, meaning that he is possessed of the intellectual faculties of deciding rightly on fact or circumstances, or where even in legal matters the expression of the opinion formed in a case by a Judge who dissents from his colleagues is commonly called his judgment, though it can have ‘no effect whatever on the determination of the suit or action in which it is delivered’.”

126. Their Lordships then point out that a decision by the High Court on a case stated for the opinion of that Court is merely advisory because it is not

“an executive document directing something to be done or not to be done, but is merely the expression of the opinion of the majority of the Judges who heard the case together with a statement of the grounds upon which those opinions are based. It amounts to a ruling that a certain deduction claimed by a taxpayer to be allowed from the sum for which he has been already assessed to income-tax is not permissible.”

127. It is easy to see that their Lordships in that case were merely attempting to show that an expression of opinion on a point referred to the High Court is not a judgment as understood in legal parlance. Such a judgment must have a bearing upon the rights and liabilities of parties to an action. It is also obvious that in dealing with the matter their Lordships considered the expression ‘final judgment’ and not judgment’, since the matter was under the clause of the Letters Patent allowing appeal to His Majesty in Council.

128. I do not find in the above case anything to show that in clause 10 of our Letters Patent the word ‘judgment’ can only be limited to the ‘decree’ by which the entire suit is determined. Further, there is some difference between ‘judgment’ and ‘final judgment’. If the intention was that the term ‘judgment’ should mean only a final judgment, it would have been very easy to qualify the word ‘judgment’ with the word ‘final’ as has been done in the clause dealing with appeals to His Majesty in Council.

129. This brings me to the last case which I intend examining in this connection. That case is the ‘Dakore Temple Case’, A.I.R 1925 P.C 155. That was an appeal from the Bombay High Court on a certificate granted by that Court. The first question raised was whether an appeal lay. The dispute related to Dakore temple, and in an earlier suit the Privy Council had confirmed a scheme for its management. The scheme provided for a committee of the temple to make rules, and clause 20 of the scheme stated that the provisions of the scheme might be altered, modified or added to by an application to His Majesty's High Court of Judicature at Bombay.

130. Rules were framed by the committee & were approved by the District Judge. An application was made to the High Court for modification of the rules. At the same time, the order sanctioning the rules by the District Judge was considered to be an order made in execution of an appeal and an appeal was also presented purporting to be under Section 47 of the CPC. In the High Court the single Judge treated the appeals as appeals against orders in execution, since no objection was taken, and the single Judge delivered a judgment in those appeals. No order was separately passed on the application made out of abundant caution.

131. From the decision of the single Judge an appeal was taken to the Privy Council. ‘Their Lordships held that there was no right of appeal against the decision of the District Judge and the appeals to the High Court did not lie and ought to have been rejected.’ Their Lordships observed that the power of the High Court at Bombay was confined to the alternation, modification or addition to the rules sanctioned by the District Judge on an application made to it and the High Court had no other power. Their Lordships were of the opinion that power had not been exercised at all, inasmuch as the applications were not disposed of and an appeal was entertained, which even the acquiescence or consent of the parties could not make tenable.

132. Their Lordships then considered whether an appeal lay to His Majesty in Council from the ‘judgment’ of the High Court. Their Lordships on this observed as follows:

“There was no right of appeal to His Majesty in Council from the judgment, of the High Court of the 11th April 1919 and 22nd September 1919 or from any decrees which were drawn up, except on the sole ground that the judgment or decrees were incompetent. ‘The term ‘judgment’ in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense.’ This appeal to His Majesty in Council should not have been admitted.”

(underlining (here in single quotation) is by me).

133. Thereafter their Lordships allowed the appeal, apparently under the prerogative of His Majesty to do justice in any case.

134. The observations of their Lordships underlined (here in single quotation) above have been held to be decisive of the question. When their Lordships speak of a ‘judgment in the ordinary sense’ it is easy to understand their meaning since they are referring to the various meanings which the word judgment in popular language possesses and to which their Lordships had made a reference only two years previously in the ‘Tata Iron & Steel Co. Case’. A.I.R 1923 P.C 148. When their Lordships observe that the term ‘judgment’ means a decree, the meaning unfortunately is not so clear since it transfers the controversy from the term judgment to ‘decree’ as used by their Lordships. It is obvious that the word was not used as defined in the Code of Civil Procedure but as understood by the profession, that is to say in the sense of an executive document directing something to be done or not to be done. By using the term ‘decree’ to define judgment their Lordships merely pointed out that the term judgment means an order which determines rights and liabilities and is not a mere expression of opinion by a Judge.

135. The above summary and discussion of what I consider the leading authorities would show that we are far from a solution of this vexed question. I shall now briefly comment on the leading definitions of the term ‘judgment’. I have already discussed them in detail as occasion arose. All that is now necessary is to point out why I consider them inadequate. I shall then attempt to define the term ‘judgment’.

136. The definition of Bittleston, J. in ‘De Souza v. Coles’, 3 Mad. H.C.R 384 that the term ‘judgment’

“cannot be limited to the final judgment in a suit nor indeed to a suit at all, but must be held to have the more general meaning of any decision or determination affecting the right of any suit or application”,

137. Is too wide. It almost defines the term ‘in the ordinary sense.’ The comments of Sir Richard Couch, to which I drew attention in para 13 above, give reasons which are sufficient to prove that the definition is not appropriate.

138. The decision in ‘Tuljaram's Case’. 35 Mad. 1 (F.B) is quite correct in so far as it says that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in a suit is not a judgment. I respectfully differ however from the definition of Sir Arnold White. C.J, when he says that even orders in ancillary proceedings are included because the professional meaning of ‘judgment’ is that it is a decision obtained in an action, every other decision being an order (Vide nor Lord Esher in ‘Onslow v. Commissioners of Inland Revenue’, (1890) 24 Q.B.D 584, approved by the Judicial Committee in ‘Tata Iron & Steel, Co. Ltd. v. The Chief Revenue Authority of Bombay’. AIR 1923 PC 148). I do not agree also with the opinion that the word judgment’ means ‘any final order, decree or judgment’ because that would amplify clause 10 to the magnitude of clause 29 and read words which are not there.

139. The definition of Sir Richard Couch has the merit of simplicity and is in accord with the dicta of the Privy Council in ‘Hurrish Chunder v. Kali Sundari Debia’, 9 Cal. 482 (P.C) and ‘Tata Iron and Steel Co. v. Chief Revenue Authority of Bombay’, A.I.R 1923 P.C 148. Unfortunately, the definition is not exhaustive and certain negative aspects are not adequately noticed which have since been the subject of controversy.

140. The definition of Page, C.J, follows the dictum of the Privy Council. The ‘Dakore Temple Case’, A.I.R 1925 P.C 155 did not lay down a definition of the term ‘judgment’. The observation of their Lordships is understandable only in its latter part since it transfers the controversy from the term ‘judgment’ to the term ‘decree’ as used by their Lordshps. It is impossible to hold that their Lordships used that word as defined in the Code of Civil Procedure.

141. I shall now attempt to define the term and I do so with considerable hesitation, bearing in mind that eminent Judges have failed in the task, I may also point out that the definition is based mainly upon the dictum of Sir Richard Couch, but modified in the light of later decisions.

142. In my opinion, the term judgment as used in the Letters Patent, regard being had to the several parts thereof, means this:

A judgment means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. The decision need not be immediately executable ‘per se’ but if left untouched, must result inevitably without anything further, save the determination of consequential details, in a decree or decretal orders, that is to say an executive document directing something to be done or not to be done in relation to the facts of the controversy. The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy.

143. From the definition I have given it is obvious that some orders of remand are included in the term judgment but not others. Where the Court merely remits an issue for trial or orders that some evidence be taken, it is a progression of the suit but the order itself does not amount to a judgment. But where the Court sets aside a decree which decides the controversy, and making a binding order, sends the case hack for decision in the light of its remarks (“Rahimbhoy Habibbhoy v. C.A Turner’. 15 Bom 155 (PC)), the order must be treated as a judgment. I have already referred in this opinion to the cases illustrative of both aspects. Other cases are referred to in ‘Dr. G.W Pandit v. Purushottam Vithal’. L.P.A No. 5 of 1950 (Nag.). I need not refer to them again. I may state that section 104 or Order XLIII of the CPC do not affect this, as was held by the Privy Council in ‘Hurrish Chunder v. Kali Sundari Debia’, 9 Cal. 482 (P.C) and ‘Abdul Rahman v. D.K Cassim & Sons’, 11 Rang. 58 (P.C).

144. My answer to the question posed is:

‘When the remand order merely remits an issue for trial or orders some evidence to be taken but does not decide the controversy either wholly or partially, the remand order cannot be treated as a judgment; but where the Court sets aside a decree and making a binding order on the merits of the controversy remits the case for trial according to its decision, the order must be treated as a judgment.’

Mudholkar, J.:— This is a reference made to a Full Bench by my Lord the Chief Justice and myself. The point referred to is as follows:

“Whether the order of remand passed by a single Judge of this Court sitting in Second Appeal amounts to a judgment within the meaning of clause 10 of the Letters Patent of this Court?”

145. Considerable controversy has raged in the Courts in India over the meaning to be accorded to the word ‘judgment’ occurring in clause 10 of the Letters Patent of the High Court. Some Courts have given this word a narrow and restricted meaning, while others have accorded it a wide meaning. In this Court, following the definition of ‘judgment’ given by their Lordships of the Privy Council in ‘Sevak Jeranchod Bhogilal v. The Dakore Temple Committee’, A.I.R 1925 P.C 155, the word ‘judgment’ has been interpreted to mean in civil cases a decree and not a judgment in the ordinary sense. Those decisions are all referred to in the opinion recorded by Hidayatullah, J. and so it is not necessary for me to refer to them again.

146. The view taken in earlier cases was, however, departed from by a Division Bench of this Court consisting of my Lord the Chief Justice and Hidayatullah, J. in ‘Dr. G.W Pandit v. Purushottam Vithal’, L.P.A No. 5 of 1950 (Nag.) in which their Lordships treated a final order passed by a single Judge of the High Court disposing of an election matter as a ‘judgment’ and therefore appealable under clause 10 of the Letters Patent. In the view of my Lord the Chief Justice and Hidayatullah, J. their Lordships of the Privy Council were dealing with clause 39 of the Letters Patent of the Bombay High Court which deals with appeals to the Privy Council and that decision is not an authority which covers cases arising under clause 10 of the Letters Patent of this Court.

147. The question, therefore, reduces itself to this: Whether their Lordships of the Privy Council intended only to define the word ‘judgment’ occurring in clause 39 of the Letters Patent of the Bombay High Court or whether they intended to give a general definition of that word, wherever occurring.

148. There is no doubt that there is some difference in the wording of clause 15 (which corresponds to clause 10 of this High Court) and that of clause 39 of the Letters Patent of the Bombay High Court; but, to my mind, that difference is not material for the purpose of construing or defining the word ‘judgment’. In ‘Tuljaram Row v. Alagappa Chettiar’, 35 Mad. 1 (F.B) the word ‘judgment’ was held to include a decision which had the effect of putting an end to a suit or proceeding so far as the Court before which the suit or proceeding was pending, even though it did not amount to a decree. That view was accepted by the Lahore High Court in ‘Ruldu Singh v. Sanwal Singh’, 3 Lah. 188. The High Court of Rangoon, however, in ‘In Re Dayabhai Jiwandas v. A.M.M Murugappa’, 13 Rang. 457 (F.B) did not, approve of it. Page, C.J in his opinion observed—

“Judgment means and is a decree in a suit by which the rights, of the parties at issue in the suit are determined………. A final judgment is a decree in a suit by which all the matters at issue therein are decided. A preliminary or interlocutory judgment is a decree in a suit by which the right to the relief claimed in the suit is decided, but under which further proceedings are necessary before the suit, in its entirety, can be determined.”

149. Similarly, in ‘Shaiizadi Begum v. Alakh Nath’, 57 All. 983 (F.B) of which Sulaiman, J. was a member, the view taken in the Madras case was dissented from. These and other cases including the Privy Council decision in the ‘Dakore Temple Case’ were considered by Sulaiman, J. in ‘Hori Ram Singh v. Emperor’, 1939 F.C.R 159. No doubt his Lordship was considering the meaning of the word ‘judgment’ occurring in Section 205 of the Government of India Act, 1935, but for arriving at the meaning of that word his Lordship referred to the ‘Dakore Temple Case’, and several other cases including those already referred to above, and, disapproving the Madras view and accepting that of the Rangoon High Court, came to the conclusion that after the decision of the Privy Council the word ‘judgment’ cannot be taken in its widest possible sense so as to include every order which terminates a proceeding pending in a High Court so far as that Court is concerned.

150. The other two learned Judges, Sir Maurice Gwyer, C.J and Varadachariar, J. who were parties to the decision in ‘Hori Ram's Case’, did not subscribe to the view taken by Sulaiman, J. and at one time it was thought that their Lordships of the Privy Council had in ‘Emperor v. Sibnath Banerjee’, A.I.R 1945 P.C 156 approved of the view taken by Gwyer, C.J and Varadachariar, J. in preference to that taken by Sulaiman, J. Whether the decision in ‘Sibnath's Case’, had that effect or not was considered by their Lordships of the Federal Court in ‘Kuppuswami Rao v. The King’, A.I.R 1949 F.C 1 and it was held there that the observations of their Lordships of the Privy Council did not mean that the word ‘judgment’ has to be given a wide meaning. It is also clear from the decision of their Lordships that they approve of the view taken by Sulaiman, J. in ‘Hori Ram's Case’.

151. Subsequent to that decision their Lordships had again to construe the word ‘judgment’ in ‘Mohd. Amin Bros. v. Dominion of India’, A.I.R 1950 F.C 77 where it was argued before them that an order which is not a final order could yet be regarded as a judgment so as to come within the purview of Section 205(1) of the Government of India Act. Repelling the contention their Lordships observed:

“In English Courts the word ‘judgment’ is used in the same sense as a ‘decree’ in the Code of Civil Procedure and it means the declaration or final determination of the rights of the parties in the matter brought before the Court…………. According to the definition given in the Code of Civil Procedure, a judgment is the statement of reasons given by a Judge on which a decree or order is based. If the order, which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutory judgment and the collocation of words ‘judgment decree or final order,’ in Section 205(1) of the Government of India Act makes it clear that no appeal is provided for against an interlocutory judgment or order.”

152. To my mind, these decisions set the controversy at rest and make it clear that the word ‘judgment’ as occurring in clause 10 of the Letters Patent must be construed to mean in civil cases only ‘a decree’ as laid down by their Lordships of the Privy Council in the ‘Dakore Temple Case’. A.I.R 1925 P.C 155. Respectfully disagreeing with my Lord the Chief Justice and Hidayatullah J., I therefore hold that the previous decisions of this Court, except the decision in ‘Dr. G.W Pandit v. Purushottam Vithal’, L.P.A No. 5 of 1950 (Nag.) which is not in consonance with these decisions, are correct. Accordingly, I answer the question referred to the Full Bench in the negative.

A/V.R.B

153. Reference answered.