JUDGMENT

1. Kamta Prased, predecessor-in-title of the respondent, Kalyanjibhai, obtain-ed a preliminary decree for foreclosure on 6-8-1928 in civil Suit No. 19 of 1927 in the Court of the Additional District Judge, Raipur, for Rs. 1,06,227-10-0 against Malhar Rao, father of the appellants. The decree was slightly modified in appeal on 17-10-1929. The estate of Malhar Rao, zamindar of Amgaon, was taken, under the superintendence of Court of Wards, Bhandara. In 1932–1933 the Court of Wards sold two of the mortgagad villages and paid Rs. 41,000 towards a part satisfaction of the decree. On 3-9-1932 the parties filed a compromise petition in the trial Court in which they stated that the judgment-debtor had paid ss. 41,000 through Court of Wards, Bhandara, and the balance of the decretal amount was agreed to be paid in 21 instalments commencing from 1-6-1933. One of the terms of the compromise between the parties was that in default of payment of any two instalments the entire amount was to be exigible and the amount was recoverable with interest at 6 per cent, per annum. Two instalments were not paid and the decree-holder made an application on 7-7-1934 for a final decree. The debtor applied to the Debt Conciliation Board, Gondia, for conciliation of his debts and the proceedings were pending till 18-5-1938 when the application was dismissed. In the meantime, Malhar Rao died on 22-8-1937 and the appellants were substituted as judgment-debtors in his place as his legal representatives.

2. The appellants contested the right of the decree-holder to get a final decree for foreclosure because of the compromise dated 3-9-1932. This contention was rejected by the trial Court and the order of the trial Court was confirmed by the High Court on 18-7-1938. In the meantime, the appellants filed a suit in the Court of the Additional District Judge, Bhandara, for a declaration that the decree for foreclosure was not binding on them and obtained an order from that Court under O. 21, R. 29 of the CPC, on-24-3-1938 for stay of proceedings in the suit (civil Suit no. 19 of 1927). The decree-holder contested that order in the Court of the Additional District Judge, Raipur, which held that in spite of the stay order the Court had power to make the decree final and ordered on 29-7-1939 that the decree will be made final unless the judgment-debtors paid Rs. 10,000 in Court on or before 1-10-1939. The judgment-debtors did not pay that amount and filed an application on 7-10-1939 for review of that order, for extension of time for payment and for instalments. The application was rejected and a final decree for foreclosure was passed on 7-10-1939. The judgment-debtors filed Miscellaneous First Appeal no. 43 of 1940 in this Court on 1-12-1939 against the order of the trial Court refusing to extend time for payment, but they did not file an appeal against the final decree for foreclosure. The Division Bench by the order dated 5-4-1940 held that the appeal was against the order and not against the decree and that the appeal was within time. During the pendency of the appeal, the decree-holder assigned his rights to the respondent Kalyanjibhai on 16-2-1944 for Rs. 65,000. Kalyanjibhai was substituted as a decree-holder in place of Kampta Prasad on 7-3-1945. The appeal was dismissed by Hemeon, J. by an order passed on 6-11-1946.

3. The judgment-debtors filed a Letters Patent appeal on 11-11-1946 against the order passed by Hemeon, J. On 20-11-1946 the decree-holder applied for dismissal of the appeal on the ground that no Letters Patent appeal was tenable against the order of Hemeon, J.

4. The question for decision is whether a Letters Patent appeal lay against the order of Hemeon, J. passed on 6-11-1946. The decision turns on the determination of the point whether the order of Hemeon, J. is a judgment within cl. 10 of our Letters Patent.

5. This Court following a dictum of their Lordships of the Judicial Committee in A.I.R 1925 P.C 155 : 27 Bom. L.R 8721 has consistently held in a series of cases that the term “judgment” in the Letters Patent of our High Court means, in civil cases, a decree and not a judgment in the ordinary sense: see L.P.A No. 3 of 1940,2 I.L.R (1942) Nag. 41,3 I.L.R (1943) Nag. 453,4 I.L.R (1944) Nag. 8275 at p. 828, I.L.R (1945) Nag. 286,6 I.L.R (1946) Nag. 482,6a L.P.A No. 10 of 19447 and L.P.A No. 17 of 1942.8

6. The appellants had made an application in the trial Court for extension of time under O. 34, R. 2(2) of the CPC. That application was rejected by the order dated 7-10-1939. The appellants filed miscellaneous appeal No. 43 of 1940 in this Court under O. 43, R. 1(0) against the order of the trial Court refusing to extend the time for payment of mortgage money. Hemeon, J. dismissed the appeal on 6-11-1946. His order is not a decree as defined in Section 2(2) but is an order as defined in Section 2(14) of the CPC.

7. The learned counsel for the appellants strenuously contended that the term “judgment” in cl. 10 of our Letters Patent includes also orders which are not decrees and that the view of this Court to the contrary requires reconsideration because of the decision of their Lordships of the Judicial Committee in 9 Cal. 4829 and submitted that if necessary the matter may be referred to a Full Bench for decision. The other cases cited by the learned counsel were considered in our decision reported in I.L.R (1945) Nag. 286 and we do not propose to cover the same ground. We shall restrict ourselves to the examination of the decision in 9 Cal. 482 and to the submissions which the learned counsellor the appellants made when he sought to distinguish the other Privy Council cases.

8. In order to understand the decision of their Lordships of the Judicial Committee in 9 Cal. 482 it is necessary to set out briefly a few relevant facts. One Shombhu Chunder Chowdry made a grant of three villages to his sister, Kasiswari Debya. She made a will under which she bequeathed the moiety of the estate to her daughter Chundermoni, and if she adopted a son, to that adopted son, otherwise to her (Chundermoni's) daughters and the other moiety was to remain in possession of her daughter-in-law Kali Sundari till her adopted son attained majority and after he attained majority they ware to receive equal shares in case there was a misunderstanding between them. On the death of Kasiswari in 1871, Hurrish Chunder, son of Shombhu Chunder, took possession of the villages which his father had granted to Kasiswari, whereupon Chundermoni and Kali Sundari on behalf of her adopted son filed a suit for possession of the estate and for mesne profits. The dispute between the parties was as regards the nature of the right which was conferred on Kasiswari, whether the had absolute estate or a mere life estate. The trial Court held that Kasiswari took an absolute estate under the grant, that she executed a will, that Chundermoni took an absolute estate under the grant on the death of her mother but that having elected to take under her mother's will and to admit Kali Sundari, the co-plaintiff, to a half share of the astate, both the plaintiffs were entitled to maintain the action against the defendant. The Court passed a decree for possession and mesne profits. The trial Court did not decide the question of adoption because, whether the adoption was proved or not, Kali Sundari had the right to immediate possession.

9. On appeal the High Court held that Kasiswari had a mere life estate and was not competent to dispose of the property by will, reversed the decree of the trial Court and dismissed the suit of the plaintiffs. In the meantime, Chundermoni had died and her daughters appealed to the Privy Council and by an Order in Council the judgment of the High Court was reversed and the decree of the Subordinate Court was affirmed. Their Lordships of the Judicial Committee held that Kasiswari took an absolute estate and that the plaintiffs were entitled to succeed in the suit but that it was act necessary to decide what their rights may be inter se. The decision of the Privy Council is creported in 5 I.A 138.10

10. Kali Sundari was not a party in appeal before their Lordships of the Judicial Committee. A certified copy of the Order in Council was granted to the daughters of Chundermoni. During the pendency of the appeal before the Privy Council, Hurro Kinkurry, a daughter of Chundermoni, purchased the right, title and interest of her sister Bhoobun Mohini and she in her turn sold her right and interest in the subject-matter of the suit to Hurrish Chunder and made over to him the certified copy of the decree which she had received from the Privy Council. On 13-5-1880, Kali Soondari on behalf of her adopted son applied to the High Court for execution of the order of the Judicial Committee under Section 610 of the CPC (Act 10 [X] of 1877) which corresponds to O. 45, R. 15 of the CPC, 1908. The application came up for hearing before Pontifex, J. Two objections were raised before him viz., (1) that the application was not tenable because it was not accompanied by a certified copy of the decree of Her Majesty in Council and (2) that the decree of the original Court upheld by the Privy Council could only be executed as a whole, and not by one of the two plaintiffs. Pontifex, J. overruled the first contention but upheld the second and refused the application for execution. The applicant was left to a regular suit to enforce her claim to any share of the property.

11. A Letters Patent appeal was filed against the order of Pontifex, J. and a preliminary objection was taken that order was not a judgment within the meaning of cl. 15, Letters Patent, which corresponds to Cl. 10 of our Letters Patent. All the three Judges were of opinion that the order of Pontifex, J. was wrong and that he was bound to transmit the Order in Council to the trial Court for execution. Mitter, J. held that the learned Judge who disposed of the application was bound to transmit the Order in Council to the trial Court for execution and his refusal to do so was a judgment within cl. 15, Letters Patent and was appealable. That was also the view of White, J., who applied the definition of Couch, C.J in 8 Beng. L.R 43311 and held that the order under appeal was an order of rejection and was a judgment because it held that the applicant was not entitled to have the decree of the Privy Council executed. Garth, C.J held that Pontifex, J. was bound to transmit the Order in Council to the trial Court for execution but that his refusal to transmit the Order in Council did not amount to a “judgment” as Pontifex, J. was performing a mere ministerial duty. The appeal was allowed according to the opinion of the majority of the Judges, and the order of Pontifex, J. was reversed. The case is reported in 6 Cal. 594.12

12. Hurrish Chunder filed an appeal to the Privy Council against this order. Their Lordships of the Judicial Committee held that the provision of S. 610 requiring the filing of a certified copy of the Order in Council along with the application was directory and that as the defendant who had the copy neglected to file it, as he ought to have done, in the Court, the failure to file the certified copy of the order in the circumstances of the case was excusable.

13. Their Lordships of the Judicial Committee stated that they were unable to subscribe to the doctrine that a decree can only be executed as a whole and not partly by one of the plaintiffs—a doctrine which, as pointed out by the High Court, would lead to the consequence that a defendant could prevent the execution of a decree by buying the interest of one of the plaintiffs. The view of their Lordships was that Kali Sundari was entitled to possession of half of the estate in question, that Chundermoni bad no right in that suit to dispute the title of the plaintiff to present possession of a moiety of the land, and that the defendant, who had purchased the share of her (Chundermoni's) representatives had no better rights. The defendant was consequently a wrongdoer; and as against him she had an immediate right to possession.

14. Their Lordships accordingly affirmed the judgment of the High Court coupled with a declaration that the decree was to be executed in respect only of the share of which Kali Sundari was entitled under and by virtue of the will and that nothing in their judgment was to affect any right which the defendant may at any time have to question the validity of the adoption.

15. The reason for holding that the order of Pontifex, J. was a judgment within the meaning of S. 15 of the Royal Charter of 1865 was stated by their Lordships of the Judicial Committee at p. 16 of 10 I.A 4 in these terms:

“These learned Judges held (and their Lordships think rightly) that whether the transmission of an order under S. 610 would or would not be a merely ministerial proceeding, Pontifex, J. had in fact exercised a judicial discretion and had come to a decision of great importance, which, if it remained, would entirely conclude any rights of Kali Soondari to an execution in this suit. They held, therefore, that it was a judgment within the meaning of section 15.”

16. We have underlined (here italicized) a few words in order to bring out the full implication of the decision of their Lordships of the Privy Council. The order of Pontifex, J. was a decree within the meaning of Section 2 of the CPC, 1877, though it was not so specifically stated. The ratio decidendi of the case was thus not inconsistent with the dictum laid down by their Lordships in a subsequent case, A.I.R 1925 P.C 155, that the? term “judgment” in the Letters Patent means in civil cases a decree and not a judgment in the ordinary sense.

17. The contention of the appellant in 9 Cal. 482 based on Section 588 of the CPC, 1877, that the appeal against the judgment of Pontifex, J. was incompetent was negatived by their Lordships of the Judicial Committee at p. 17 of 10 I.A 4, where they stated:

“It only remains to observe that their Lordships do not think that S. 588 of Act 10 [X] of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court.”

18. The relevant portion of S. 688 of the Code was in these terms:

“An appeal shall lie from the following orders under this Code and from no other such orders.”

19. Clauses (a) to (w) specify the orders against which appeals were provided. After enumerating, the orders, it was enacted that the orders passed in appeals under this section shall be final.

20. Section 691 enacted that except as provided in chap. 43, no appeal lay from any order passed by any Court in the exercise of its original or appellate jurisdiction; but if any decree was appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, was to be set forth as a ground of objection in the memorandum of appeal. These sections were reproduced in identical terms in the Code of Civil Procedure, 1882. These sections have been reproduced with certain alterations in the Code of Civil Procedure, 1908, as S. 104 and O. 43, R. 1, and S. 105 respectively. The scheme of the two Codes 1877 and 1882 was that the provisions relating to appeals were collected in part VI; chap. 41 dealt with appeals from original decrees, chap. 42 with appeals from appellate decrees, chap. As with appeals from orders, chap. 44 with pauper appeals and chap. 45 with appeals to the Queen in Council. Section 540 enacted that unless when otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lay from the decrees, or from any part of the decrees of the Courts exercising original jurisdiction, to the Courts authorized to hear appeals from the decisions of those Courts.

21. Sections 582 and 591 were in chap. 43. Sections 610 and 611 were parts of chap. 46 which dealt with appeals to the Queen in Council. Section 610 dealt with procedure to enforce orders of the Queen in Council. Section 610 stated that the orders made by the Court which, enforced or executed the orders of Her Majesty in Council, relating to such enforcement or execution, were appealable in the same manner and subject to the same rules as the orders of such Court relating to the enforcement or execution of its own decrees.

22. Chapter 19 dealt with the execution of decrees. Section 244 thereof stated that certain questions were to be determined by the Court executing a decree and not by a separate suit. Under the Code of 1877, one of the questions which the executing Court had to determine was a question arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution of the decree. Under S. 244(c) of the Code of 1882, the executing Court was empowered to decide any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay of the execution thereof.

23. “Decree” was defined in Section 2 of the CPC 1877, as the formal order of the Court in which the result of the decision of the suit or other judicial proceeding was embodied but did not include an order in appeal remanding a suit for re-trial. There was no definition of “order” in the Code.

24. “Decree” was defined in Section 2 of the CPC, 1882, as

“the formal expression of an adjudication upon any right claimed, or defence set up, in a civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal. An order rejecting a plaint, or directing accounts to be taken, or determining any question mentioned or referred to in S. 244, but not specified in S. 588, is within this definition: an order specified in S. 588 is not within this definition:”

25. “Order” was defined as the formal expression of any decision of a civil Court which is not a decree as above defined.

26. Any order passed by an executing Court relating to execution, satisfaction, or discharge of a decree between the parties was a decree and consequently an appeal lay against that order under S. 540 of the Code. The scheme of the Code of Civil Procedure, 1908 is, however, different. The Code consists, (i) of that which is termed ‘the body of the Code’ and (ii) of the rules. The body of the Code is fundamental and is unalterable except by the Legislature; the rules are concerned with details and machinery and can be more readily altered. Thus, it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, and it has to be read in conjunction with the more particular provisions of the rules: see, 43 Cal. 14813 at p. 152.

27. “Decree” is defined in S. 2(2) as

“the formal expression of an adjudication which be 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 the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default…”

28. We have not reproduced the explanation which defines a preliminary and a final decree, as it is not necessary for the purpose of the disposal of this appeal. Section 47(1) enacts that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Section 96 states that save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

29. The relevant portion of S. 104 is given below:

“(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: (i) any order made under rules from which an appeal is expressly allowed by rules.

(2) No appeal shall lie from any order passed is appeal under this section.”

30. The section enumerates the several orders from which an appeal lies the words underlined (hero italicized) in sub-s. (1) have been introduced in the section which were not in the corresponding section 588 of the Code of 1877 or of 1882.

31. Section 105(1) states that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect, or irregularity in any order, affecting, the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

32. The procedure regarding execution of decrees and orders is contained in O. 21 of the Code. Order 41 deals with appeals from original decrees, O. 42 with appeals from appellate decrees, O. 43 with appeals from orders, O. 44 with pauper appeals and O. 45, with appeals to the King in Council. Order 45, R. 15 and R. 16 correspond respectively to ss. 610 and 611 of the Codes of 1877 and 1882.

33. The order of Hemeon, J. was passed under Section 104 read with O. 43, R. 1(o) of the CPC and was not an order passed in execution or under O. 45, R. 16 of the Code, and was consequently not a decree.

34. The statement of their Lordships of the Privy Council at page 17 in 10 I.A 4 already quoted above led to a divergence of judicial opinion as regards its interpretation. In 11 ALL. 37514 at pp. 875-376, Sir John Edge, C.J as he then was observed:

“I do not understand their Lordships there to have held that Section 58-P of the CPC, does not apply at fill to appeals attempted to be brought to the Full Court, from an order passed by a Judge of the Court. I think they were restricting their observations to the case before them. In that case the question arose from a so-called order of Pontifex, J., in respect of an order of the Privy Council for execution. Pontifex, J. considered that the decree as it then stood ms not susceptible of execution, and refused to transmit the decree to the Court below. An appeal was preferred under S. 15, Letters Patent of the Calcutta High Court. Two of the Judges of that Court difiered from the Chief Justice; the Chief Justice thinking that Pontifex, J.'s order was merely ministerial, and the other two Judges apparently thinking that his proceeding was more than ministerial. Mitter, J. pointed out that Pontifex, J. ought to have acted under S. 244 of Act 10 [X] of 1877. Those two Judges considered that an appeallay under S. 15, Letters Patent.

With regard to that case my observation is this, that apparently Mitter, J. considered that Pontifex, J. must have taken action or ought to have acted under S. 244 or S. 245 of the then Code. If Pontifex, J. was acting under those sections, it was quite obvious that an appeal would lie. If he was not acting under those execution sections of the Code, but under S. 610 of the Code, I have difficulty in seeing how Section 588 of the CPC, could have applied to what he did.”

35. The decision in that case was that an order refusing leave to appeal in forma pauperis was not a judgment. This is the view which has been taken in this Court in L.P.A No. 3 of 1940.

36. In 14 ALL. 226,15 it was held that the order of a Judge of a High Court amending a decree was not a judgment and that no Letters Patent appeal lay against that order. Sir John Edge, C.J adhered to his previous observation regarding 9 Cal. 482 and stated that Letters Patent appeal undoubtedly lay against the order of Pontifex, J. because he was acting or assumed to act under Section 244 of the CPC, 1877. After a detailed examination of the provisions of the Code of 1877, he held that S. 688, which occurred in Chap. 43, could not be applied to orders made in appeals in cases which are under appeal to Her Majesty in Council under chap. 45 and that consequently an appeal lay from the order of Pontifex, J., whether he had or had not jurisdiction to make that order.

37. The interpretation put by Sir John Edge on the statement of the Privy Council was approved by Benson J., in 20 Mad. 407,16 but was, however, not accepted by the Madras High Court in 22 Mad. 6817 and in 25 Mad. 55518 and by the Calcutta High Court in 26 Cal. 361.19

38. No useful purpose will be served by referring to these cases or to numerous other cases in which the statement of their Lordships of the Privy Council has been construed. We respectfully agree with the observations of Sir John Edge, C.J and Benson, J. that the statement of their Lordships of the Judicial Committee in 9 Cal. 482 has to be read with reference to the facts of the particular case and that Section 588 of the CPC, 1877, did not apply to the order of Pontifex, J. because it was passed by him in execution under S. 244 of the Code and that consequently a Letters Patent appeal lay against his order because it was a decree and that the statement cannot be read as laying down a wider proposition that an order, even though not a decree, was a judgment within the meaning of cl. 15 of the Letters Patent (cl. 10 of our Letters Patent).

39. In 48 I.A 76 : 48 Cal. 48120 the question of the competency of a Letters Patent appeal from the order of Chowdhury, J. refusing to grant letters of administration was not raised. A petition had been made to the Calcutta High Court on its original civil side in the exercise of its testamentary and intestate jurisdiction under the Probate and Administration Act, 1881, praying for the administration of the property of the husband of the petitioner with a copy of his last will annexed. This petition was opposed and a caveat was entered to her petition. The proceedings were contested and under Section 83 of the Probate and Administration Act, 1881, they were registered as a suit, and the proceedings ended with a decree passed by Choudhury, J. rejecting the application of the petitioner. That a decree was passed by Choudhury, J. in that case is clear from the statement of Panckridge, J. in 43 C.W.N 69721 at p. 725. As there was a decree, Letters Patent appeal lay against the judgment of Choudhury, J.

40. An order had been passed in that case calling on the appellant to furnish security for costs under O. 41, R. 10 of the CPC, 1908, and as there was no compliance with that order, the Letters Patent appeal was dismissed. The question for decision was whether O. 41, R. 10 applied to Letters Patent appeals. After consideration of the relevant provisions of the Code of Civil Procedure it was held that it did. After referring to certain cases their Lordships of the Judicial Committee observed at p. 83 of 48 I.A 76, that these are cases in which the point actually decided was that the appeal expressly given by cl. 15 of the Letters Patent is not interfered with by S. 588 of the Code of 1882, on the principle generalia specialisms non derogant, following 9 Cal. 482 in 1882 and held that there was no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters.

41. At page 82 their Lordships, of the Judicial Committee compared S. 588 of the Code of 1882 with Section 104 of the CPC, 1908, and observed:

“The change in the wording of S. 104 of the Act of 1908 is significant, for it runs, ‘and save as otherwise expressly provided …. by any law for the time being in force, from no other orders.’ Section 15 of the Letters Patent is such a law, and what it expressly provides—namely, an appeal to the High Court's appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by orders and rules under the Code of Civil Procedure, 1908, are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal.”

42. It appears that their Lordships of the Judicial Committee considered that the term “judgment” in the Letters Patent of the High Courts means “decree” and not “order,” in the strict legal sense in which those terms are understood and defined.

43. The learned counsel for the appellants was not strictly accurate when he stated before us that there was no reference to 9 Cal. 482 in the subsequent Privy Council cases. It may be noted that Sir John Edge was a member of the Board of the Judicial Committee which decided 48 I.A 76 and A.I.R 1925 P.C 155. The judgment in the latter case was delivered by Sir John Edge. His Lordship had dealt with the case in 9 Cal. 482 at great length in 11 ALL. 375 and 14 ALL. 226 and it cannot be assumed that it escaped his Lordship's attention when their Lordships laid down the dictum in A.I.R 1925 P.C 155 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. This dictum was applied by Costello, J. in 40 C.W.N 1264.22 In 43 C.W.N 697 at p. 725, a case not cited before us, the question for decision was whether the order of Ameer Ali, J. in a proceeding relating to revocation of patent under the Indian Patents and Designs Act was a judgment. Both the Judges held that it was a judgment. Costello, J. stated that it was a judgment within the definition given by Couch, C.J, in 8 Beng. L.R 433 and it had also to all intents and purposes the same effect as the making of a decree and fulfilled the test laid down by their Lordships of the Judicial Committee in A.I.R 1925 P.C 155. Costello, J. expressed his agreement with the views of Sir Arthur Page in 13 Rang. 457.23 At p. 709 his Lordship observed:

“The question whether the dicta of their Lordships of the Judicial Committee of the Privy Council which are cited by Sir Arthur Page, expressly or impliedly ought to be taken to prevail as against the definition given by Couch, C.J and other decisions of this and of the other High Courts in India has been canvassed in this Court time and time again. It is very much to be desired that this vexed question should be authoritatively determined once and for all either by a decision of the Judicial Committee of the Privy Council or by a clarifying of the Letters Patent by an appropriate amendment or else by legislation.”

44. Panckridge, J. held that the order of Ameer Ali, J. was a judgment within the meaning of cl. 15 according to the definition formulated by Couch, C.J in 8 Beng. L.R 433 and that the Letters Patent appeal was competent and gave reasons why he was not prepared to accept the dictum that the term “judgment” in cl. 15 of the Letters Patent meant a decree in a suit and was of opinion that orders which are not decrees may yet be judgments and appealable as such.

45. Two important decisions have been made after the case in A.I.R 1925 P.C 155. In 13 Rang. 457, it was held that it was not permissible to interpret the word “judgment” in any sense other than the one stated by their Lordships in A.I.R 1925 P.C 155. In I.L.R (1942) Lah. 49124 the question was whether an order of a single Judge of a High Court reversing the order of the trial Court returning the plaint for presentation to proper Court and directing it to proceed with the suit was a “judgment” within Cl. 10 of the Letters Patent and was appealable. It was held on the basis of the test laid down in 35 Mad. 125 that it was a judgment and a Letters Patent appeal was competent. With reference to the decision of the Judicial Committee, it was observed that their Lordships never intended to overrule the series of cases of the Calcutta and the Madras High Courts which defined the term “judgment” and it was stated that each case must be considered on its own facts and circumstances and while the tests propounded in Madras and in the Calcutta High Courts serve as a good guide for the Lahore High Court it is not necessary to hold that those tests are comprehensive and exclude other cases. We reviewed the case-law on the point in I.L.R (1945) Nag. 286 and approved of the decision in 13 Rang. 457. We have given the matter our most careful consideration and we have not been persuaded to alter our view or to refer the case to a Full Bench for a reconsideration of the question. In accordance with the view which has consistently been held in this Court, the order of Hemeon, J. is not a judgment and consequently no Letters Patent appeal lay against the order. The Letters Patent appeal is consequently dismissed as not competent. The appellants will pay the costs of the respondents.

46. Appeal dismissed.