1. This judgment will govern Letters Patent Appeals Nos. 5 and 6 of 1950.

2. These Letters Patent appeals from the decision (to use a neutral word) of Mr. Justice Rao dated the 22nd February 1950, relate to an election dispute under the Central Provinces and Berar Municipalities Act, II of 1922. The facts and circumstances leading up to this appeal may shortly be stated as follows. On the 27th January 1947, the appellant. Dr. Govind Waman Pandit, was declared elected to as President of the Municipal Committee of Yeotmal. His election was notified in the official gazette of the 21st November 1947. Two petitions against the validity of his election were filed. One was by Dr. Purashottam Vithal Deshmukh on the 2nd December 1947 for declaring the election of the appellant as President to be void and for declaring the applicant to have been duly elected as President of the Municipal Committee of Yeotmal. This application was registered as Miscellaneous Judicial Case No. 56 of 1947. The second application was made on the 3rd December 1947 by Shri Ramnarayan Chamadiya for declaring the appellant's election as President to be void and that thus there was a vacancy in that office. This was registered as Miscellaneous Judicial Case No. 57 of 1947.

3. Under the Central Provinces and Berar Municipalities Act, II of 1922 (which for the sake of brevity will be called the Act hereinafter), a petition challenging an election like the one in question has to be presented within 14 days of the notification of the election in the official gazette. Such a petition has to be presented to:

“the District Judge or Additional District Judge or to a Civil Judge especially empowered by the Provincial Government in this behalf within the local limits of whose jurisdiction the election was held.”

4. These petitions had been presented to the Additional District Judge of Yeotmal within the time prescribed by the Act. Shri G.W Chiplonkar happened to be the Additional District Judge at Yeotmal at the relevant date. On the 3rd December 1947 he addressed a memorandum to the District and Sessions Judge, East Berar Division, Amraoti, informing him that a petition under S. 20-A of the Act had been presented by Dr. P.V Deshmukh for setting aside the election of Dr. Pandit who had been declared elected as the President of the Municipal Committee and that he had deposited the sum of Rs. 250/- as the security money according to the rules prescribed.

5. He sought instructions as to the procedure for registering such petitions, expressing his opinion that the petition will have to be registered as a Miscellaneous Judicial Case. He also drew the attention of the learned District and Sessions Judge to the fact that in the distribution memo there was no mention of the fact that such applications had to be heard and disposed of by the Additional District Judge, Yeotmal. He also informed him that the applicant had been warned that he was presenting the application to the Additional District Judge at his own risk.

6. It is not necessary to state the grounds on which the election was sought to be set aside or the answer to those grounds made on behalf of the appellant. Those are matters which are not material for the determination of these appeals.

7. On several dates after the registration of the two petitions, Shri Chiplonkar, who was both a Civil Judge, Class I, and an Additional District Judge at Yeotmal, made entries in the order sheet signed by him as Additional District Judge. But on a later date, when the notification No. 3130-3360-M-XIII dated the 6th November 1947 (published in the gazette of the 21st November) especially empowering only the Civil Judges (Class I) as competent to receive such applications, was brought to his notice, he corrected the order-sheet by amending his description as that of Civil Judge (Class I). These amendments were apparently made beyond the period of 14 days, which is the time prescribed for presenting such applications. The applications, as originally presented, had been made to the 1st Additional District Judge, Yeotmal; but subsequently on the 22nd February 1950, that is to say, after the decision of the learned Judge of this Court under appeal, amendment was made changing the description of the Court, namely, 1st Additional District Judge into Civil Judge Class I (empowered under Section 20-A of the C.P and Berar Municipalities Act, 1922.)

8. After the parties had put in their pleadings, two preliminary issues were raised, namely, (1) whether the application had not been made to the proper Judge within the time allowed, and (2) whether the deposit required by the rules was not made with the proper Judge. These two preliminary issues were joined between the parties in both these cases which were heard together and disposed of by one order. Shri Chiplonkar came to the conclusion that under the relevant rules the Civil Judge (Class I) had been empowered to entertain and hear such petitions, not as a Court but as a ‘persona designata’. Hence he answered both these issues in the negative. According to him, as there were no provisions in the rules for the return of such petitions for presentation to the proper tribunal, the only course which he could adopt was to dismiss the applications with costs to the appellant, who was non-applicant No. 1 before him. Accordingly, both the applications stood dismissed on the 17th July 1948.

9. From that decision two miscellaneous first appeals were filed in this Court which were registered as Miscellaneous First Appeals Nos. 161 and 162 of 1948. They were heard and disposed of by Mr. Justice Rao who allowed them. The learned Judge of this Court came to the conclusion that only the Civil Judge (Class I) had been especially empowered by the Government to entertain and hear such applications; hence the applications as originally filed before the Additional District Judge, Yeotmal, had not been properly presented and the Additional District Judge was not competent to enquire into the election petitions. As the learned Judge further held that the Civil Judge (Class I) was the proper authority who should have been moved, he directed the petitions to be returned to the appellants before him for presentation to the proper authority, namely, the Civil Judge (Class I).

10. Before the learned Judge a preliminary objection as to the competency of the appeals before him had been raised on behalf of the then respondent who is now the appellant before us. It had been contended that the appeals were liable to be dismissed under sub-rule (3) of R. 22 of the Municipal Election Petition Rules, 1947, as admittedly the appellants in both cases had failed to deposit Rs. 250/- by way of security for costs at the time of the presentation of the appeals.

11. On behalf of the appellants it was contended that under S. 20-A, sub-s. (4) of the Act a right of appeal has been conferred upon the aggrieved party and such a party is entitled, as of right, to present an appeal to this Court from the orders of the Election Tribunal especially constituted by the Act. It was further contended that as sub-rale (3) of R. 22 of the Municipal Election Petition Rules, 1947, is in effect a clog on this statutory right of appeal, it was ‘ultra vires’ the rule-making authority, namely, the Provincial Government. Relying upon a decision of Mudholkar, J. in the case, of ‘Kishanchand v. Bishabkumar’, ILR (1950) Nag 572, the learned Judge of this Court held that sub-rule (3) of R. 22 aforesaid was ‘ultra vires’ the rule-making power of the Provincial Government and that therefore the appeals were competent. The preliminary objection was thus overruled. One of the questions for determination in this appeal is whether the decision of the learned Judge overruling the preliminary objection aforesaid was not erroneous. This question will be discussed in its proper place.

12. Before we go on to the consideration of the merits of these appeals, we have to determine the question of the competency of these Letters Patent appeals. It has been contended on behalf of the respondents that the decision of the learned Single Judge of this Court is not a “judgment” within the meaning of Cl. 10 of the Letters Patent, of this Court which provides for an appeal as of right:

“from the judgment (not being a judgment passed 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, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of section one hundred and seven of the Government of India Act, or in the exercise of Criminal Jurisdiction) of, one Judge of the said High Court……”

13. As to what is a judgment and what is not a judgment within the meaning of the relevant portion of the clause quoted above, there is a great diversity of judicial opinion, as would appear from a summary of the precedents quoted in Mulla's Code of Civil Procedure (11th edition), at p. 1401 and the pages following that page. This large divergence of judicial opinion has been noticed in a number of decisions of this Court and of the other Courts, and it would not serve any useful purpose to trace the growth of that opinion or to set out in detail the reasons for that diversity of opinion. We would therefore refer to certain leading decisions of the different High Courts in India which may throw some light on the present controversy.

14. We naturally have to refer to the “almost classical” definition of “judgment” attempted by Sir Richard Couch, C.J in the case of ‘Justices of the Peace for Calcutta v. Oriental Gas Co.’, 8 Beng L.R 433. In the course of that judgment their Lordships have observed as follows:

“We think that ‘judgment’ in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.”

15. This definition their Lordships gave after they had examined the observations of their Lordships of the Madras High Court in the case of ‘De Souza v. Coles’, 3 Mad HCR 384, to the following effect:

“The Court there said that the word ‘judgment’ in Cl. 15 could not ‘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 right or the interest of any suitor or applicant;’ and, again ‘whether the language giving the appeal is so general in its terms as that contained in the 15th clause of the Charter, it is, we think impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from.’ We are not, however, prepared to go to this extent.”

16. The definition of “judgment” quoted above from the reported decision of their Lordships of the Calcutta High Court was adopted by a majority of a Full Bench of the same Court, in a later decision namely, ‘in the matter of the Petition of Kally Soondery Dabia’, 6 Cal 594 (FB) where it was held that an appeal lay from an order made by a Single Judge of that Court refusing to transmit for execution an order of Her Majesty in Council. That decision was affirmed on appeal to their Lordships of the Judicial committee of the Privy Council in the case of ‘Hurrish Chunder v. Kalisunderi Debi’, 9 Cal 482.

17. The Bombay High Court has adopted the definition aforesaid of the Calcutta High Court. Turning to the Madras High Court, their earliest decision in ‘De Souza v. Coles’, 3 Mad H.C.R 384, already referred to, had given a very wide interpretation to the term “judgment”; but in a more recent decision of the Full Bench of that Court in the case of ‘Tuljaram Row v. Alagappa Chettiar’, 35 Mad 1 that earlier definition was not adopted, and White, C.J has laid down the following test:

“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.

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.

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 S. 15 of the Letters Patent. On the other hand I am not prepared to say as was held in ‘Justices of the Peace for Calcutta v. The Oriental Gas Co.’, 8 Beng LR 433 and in ‘Sonbai v. Ahamedbhai Habibhai’,’ 9 Bom HCR 398, 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.”

18. Then His Lordship discusses a large number of authorities of the different High Courts. It would thus appear that their Lordships of the Madras High Court were prepared to go beyond the terms of the definition attempted by their Lordships of the Calcutta High Court in the leading case referred to above.

19. It may be pointed out that the extended definition of the term “judgment attempted by their Lordships of the Full Bench of the Madras High Court has not been accepted by a number of decisions of this Court: see for example the decisions in ‘Bhiwara v. Renuka’, ILR (1947) Nag 51 relating to the appointment of a Receiver; ‘Kunwarlalsingh v. Umadevi’, ILR (1945) Nag 286 and ‘Kunwarlal singh v. Umadevi’, ILR (1946) Nag 482, relating to the determination of the question of which legal representatives should be entitled to prosecute or defend the appeal; ‘Shankar Rao v. Kalyanji Bhai’, ILR (1947) Nag 351, relating to an order refusing to extend time for the payment of the decretal sum in a foreclosure suit; and ‘Kanhaiya v. Hiraji’, ILR (1942) Nag 41, relating to review of judgment.

20. On the other hand certain decisions of this Court have gone to the length of very much limiting the legal significance of the term “judgment” by holding that

“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,”

21. As laid down in the case of ‘Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 P.C 155. It is significant that the decision of their Lordships of the Judicial Committee of the Privy Council in the case referred to above has not been noticed, in this context, by Mulla in his latest edition (11th edition) of the Code of Civil Procedure though that case has been naturally discussed and relied upon in a large number of decisions given after 1925. Particular reference may be made to decisions of this Court, mostly of Division Benches, in which that, case was apparently relied upon, namely, ‘Kanhaiya v. Hiraji’ ILR (1942) Nag 41; ‘Ganpatrao v. Gangadar’, ILR (1943) Nag 453; ‘Kunwarlal Singh v. Umadevi’, ILR (1945) Nag 286, ‘Kunwarlalsingh v. Umadevi’, ILR (1946) Nag 482; ‘Shankar Rao v. Kalyanji Bhai’, ILR (1947) Nag 351 and ‘Ratanlal v. Gajadhar’, ILR (1948) Nag 690, relying upon some of the decisions of this Court based upon the aforesaid decision of the Privy Council.

22. A Full Bench of the Allahabad High Court in the case of ‘Sital Din v. Anant Ram’, 55 All 326 : AIR 1933 All 262 (FB), has examined the decision of their Lordships of the Judicial Committee in the case of ‘Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 PC 155. Their Lordships of the Allahabad High Court have sought to explain the judgment of their Lordships of the Judicial Committee with reference to the Letters Patent of the different High Courts. They have pointed out that probably their Lordships’ observations have reference to Cl. 39 of the Letters Patent of the Bombay High Court from where the appeal had been taken to their Lordships, and not to Cl. 15 of the Letters Patent which is equivalent to Cl. 10 of the Letters Patent of this Court.

23. It may be pointed out that, the several decisions of this Court referred to above do not appear to have kept in view the distinction point out above between the different provisions of the Letters Patent and the probable explanation of the dictum of their Lordships of the Judicial Committee. As the decision of their Lordships of the Judicial Committee is not officially reported, it is not easy to extract the facts of the case leading up to that judgment. The case is also reported in ‘Sevak Jeranchod Bhogilal v. The Dakore Temple Committee’, 49 Mad LJ 24 at p. 25, from the argument of Sir George Lowndes on behalf of the respondents on the preliminary objections, it does appear that reference was made only to Cl. 39 of the Letters Patent. Hence it is clear that their Lordships of the Allahabad High Court were correctly under the impression that it was Cl. 39 and not Cl. 15 of the Letters Patent of the Bombay High Court which was under discussion there; and the words of the two clauses are not ‘in pari materia’.

24. Hence the decision of their Lordships of the Judicial Committee in the case aforesaid is not an authority which covers cases arising under Cl. 10 of the Letters Patent of this Court. We do not mean to say that the several decisions of this Court on their merits were not correct. But it does appear that they have gone too far in holding, if they have indeed held, that in no case would a Letters Patent appeal lie under Cl. 10, unless the decision amounted to a decree. That would amount to barring the right of appeal under Cl. 10 of the Letters Patent in cases where appeals have been entertained in the past in all the High Courts in India from decisions which certainly could not in law be said to amount to decrees.

25. For example, as pointed out by their Lordships of the Allahabad High Court in the Full Bench case referred to above, appeals have always been entertained against an order of remand passed by a Single Judge of the Court; see also in this connection the decision of the Patna High Court in the case of ‘Munshi Lal v. Ramasis’. AIR 1922 Pat 384 and of the Calcutta High Court in the case of ‘Gopinath Pati v. Moheshwar Pradhan’, 35 Cal 1096 and ‘Benode Behari v. Pasupati Nath, 4 Ind Cas 329.

26. A Full Bench of the Lahore High Court in the case of ‘Shaw Hari Dial and Sons v. Sohan Malbeli Ram’, 23 Lah 491 (FB), has laid it down that an order of a Single Judge of the High Court setting aside the order of the trial Court to the effect that it had no jurisdiction to hear the suit and returning the plaint for presentation to the proper Court, was a judgment within the meaning, of Cl. 10 of the Letters Patent of the Lahore High Court which is ‘in pari, materia’ with the same clause of the Letters Patent of this Court. That case has reviewed the decisions of the different High Courts and entertained the appeal under Cl. 10 of the Letters Patent. In the course of their judgment, their Lordships of the Lahore High Court, at pp. 501 to 504 of the report, have taken pains to point out that the decision of their Lordships of the Judicial Committee in the case of ‘Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 PC 155, should be limited to cases arising under Cl. 39 of the Letters Patent of the Bombay High Court, corresponding to Cl. 29 of their Letters Patent, and that those observations would not cover cases arising under Cl. 10 of the Letters Patent which is similar to the Letters Patent of this Court.

27. We are in complete agreement with the reasons given by their Lordships in that case for holding that those observations do not cover cases arising under Cl. 10 of the Letters Patent. We do not think if necessary to repeat all those reasons given by their Lordships of the Lahore High Court in the judgment referred to above.

28. In the present case, the learned Single Judge of this Court has set aside the final order passed by the Election Tribunal especially constituted by the rule-making authority of the Government. Such an order, in our opinion, is a judgment within the meaning of Cl. 10 of the Letters Patent of this Court.

29. At the final stages of the argument it was contended on behalf of the respondents that these appeals were incompetent for another reason, namely, that the Act and the rules framed there under do not contemplate more than one appeal. Thus it was contended that the only right of appeal which the statute gave in an election dispute had been exhausted by the judgment given by the learned Single Judge of this Court. But this argument apparently has no substance in it. This appeal has been filed not because it is authorised by the Act or the rules framed thereunder but because it is authorised, as contended on behalf of the appellant, by the Letters Patent of this. Court.

30. The Act and the rules framed thereunder speak of a right of appeal to the High Court. Under the rules of business framed by this Court, these appeals are heard in the first instance by a Single judge of this Court; and if the decision of that learned Judge satisfies the condition laid down in Cl. 10 of the Letters Patent, there is no escape from the conclusion that the appeals are competent. For the reasons aforesaid, it must be held, that there is no substance in the preliminary objections raised, on behalf of the respondents to these appeals. The preliminary objections must therefore be overruled and we must proceed to dispose of the appeals on their merits.

31. The learned counsel for the appellant in his turn raised an objection of far-reaching nature to the maintainability of the first appeals in this Court which have been disposed of by the learned Single Judge and whose decision is now under appeal. It has been argued that in accordance with the rules framed under the rule-making power of the Government under the Act, it has been provided in sub-r. (3) of R. 22 as follows:

“At the time of presentation of the appeal, the appellant shall deposit with the High Court a sum of Rs. 250 as security for the costs of the appeal. If the provisions of this rule are not complied with, the High Court shall dismiss the appeal.”

32. The learned Judge of this Court observed, with respect to the preliminary objection raised before him, that sub-rule (3) quoted above is similar to sub-r. (2) of R. 22, as amended & notified in the Central Provinces' & Berar Gazette, Part III, dated the 27th May 1949, in notification No. 1744–677-M-XIII dated the 27th April 1949. He agreed with the pronouncement of Mudholkar, J. in the case of ‘Kishanchand v. Bishabkumar’, ILR (1950) Nag 572, to the effect that the rule aforesaid requiring the deposit to be made at the time of the presentation of the appeal to the High Court was ‘ultra vires’ of the Provincial Government. The learned Judge also observed that the rule was in the nature of a clog on the right of appeal given by the statute and was on that, account also beyond the powers of the rule-making authority.

33. We have to examine the correctness of this ruling. In the first instance, the observations of Mudholkar, J. in this connection are in the nature of ‘obiter dicta’, inasmuch as his Lordship had decided, in the circumstances of that case, that the defect had been removed before the period of limitation for making the application had elapsed. But his Lordship proceeded to give this additional ground, namely, that S. 20-A(3), enabled the Provincial Government to frame rules relating to the procedure to be followed by the Judge and does not refer to the procedure to be followed by the High Court when moved in its revisional jurisdiction.

34. The rule making power of the Provincial Government is contained, first, in sub-section 3 of S. 20-A of the Act, which is in these terms.

“Such petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under this Act.”

35. Secondly. S. 176(1), confers the power in these terms:

“In addition to any power specially conferred by this Act, the Provincial Government may make rules generally for the purpose of carrying into effect the provisions of this Act.”

36. Thirdly, those powers are also to be found in sub-section (2) of S. 176, the relevant portion of which is as follows:

“In particular, and without prejudice to the generality of the foregoing power, the Provincial Government may make rules:

(i) as to the procedure to be followed by the Judge in inquiries relating to petitions presented under S. 20-A………………”

37. The enquiry into an election petition is, in the very nature of the case, bound to be a summary one. Otherwise, if the procedure obtaining in the ordinary civil Courts were to be applied in all its details to such an inquiry, it may be as prolonged as ordinary civil suits, which are allowed to drag on their luxurious course for years and years. As the election may hold good only for a few years, generally from 3 to 5 years, an inquiry lasting from its first to its last stages for years, would defeat the very purpose of the petition which is to declare an election void, generally coupled with the prayer that the gap had to be filled by someone else. That it is a summary inquiry has been provided for in terms by sub-section (3) of S. 20-A. The Legislature has, therefore, empowered the Provincial Government to make rules “generally for the purpose of carrying into effect the provisions of this Act.”

38. Though originally the Act provided for a right of appeal to this Court that provision has now been amended by Act XXXII(32) of 1948, S. 2, withdrawing the right of appeal and substituting therefor a provision for revision on grounds similar to those contained in Section 115 of the CPC. Can it be said that the provision in the rules made, as quoted above, requiring the deposit of Rs. 250 by way of security for costs of the successful party is either beyond the rule snaking power of the Government or a clog on the statutory right of appeal? The right of suit questioning an election has been taken away by S. 20-A & special procedure prescribed by that section read with the rules framed by the Provincial Government. Rule 4 has provided that at the time of presentation of the election petition, the petitioner shall deposit with the Judge a sum of Rs. 250 as security for costs. The same section has given the right of appeal against the decision of the Judge in the first instance.

39. In our opinion, this rule has been enacted “generally for the purpose of carrying into effect the provisions of this Act”. That being so, in our opinion, the rule is not beyond the powers conferred on the Provincial Government for making rules for that purpose.

40. It has also been observed in the judgment under appeal that such a rule is a, clog on the statutory right of appeal. If that is so, R. 4 is equally a clog on the statutory right of making an election petition; but it has not even been argued, so far as we know, that R. 4 making provision for the deposit at the time of presentation of the petition is a clog on that right. If R. 22(3) quoted above is within the rule making powers of the Provincial Government, as we have just held, it must be held that the rule makes provision for a condition precedent to the entertainment of the appeal by the High Court and the rule also provides the penalty for not complying with this condition precedent, namely, that “the High Court shall dismiss the appeal”. In our opinion when these appeals were preferred in this Court without being accompanied by security deposits in the sum of Rs. 250 as required by the rule aforesaid, the appeals should have been dismissed ‘in limine’. For the reasons given above it is manifest that the two appeals by the two respondents in this Court should not have been entertained as the necessary deposits of the security amount of Rs. 250 in each case had not been made. The learned Judge should have dismissed the appeals on that ground alone without going info the merits of the case. These appeals are, therefore, allowed with costs. Counsel's fee Rs. 250 in each case to be paid to the appellant by the respondent in each case.

41. Appeal allowed.