Sir John Edge, C.J:— This is an appeal under s. 10 of the Letters Patent from an order of our brother Straight refusing an application for leave to appeal in forma pauperis. Mr. Colvin on behalf of the respondent has taken a preliminary objection that the appeal will not lie. Ordinarily, and unless there is something in the Code of Civil Procedure to take away the appeal, an appeal lies under s. 10 of the Letters Patent from a judgment, or order, not being a sentence or order passed or made in a criminal trial of one Judge of this Court. On behalf of the appellant Mr. Moti Lal has cited a judgment of the Privy Council in Hurrish Chunder Chowdhry v. Kali Sunderi Debi and he has referred more particularly to a passage at p. 494, where it is said—“It only remains to observe that their Lordships do not think that s. 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from of one of the Judges of the Court to the full Court.” I do not understand their Lordships there to have, held that s. 588 of the Civil Procedure Code does not apply at all to appeals attempted to be brought to the Full Court, from an order passed by a Judge of the Court. I think [376] 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. Mr. Justice Pontifex considered that the decree as it then stood was not susceptible of execution, and refused to transmit the decree to the Court below. An appeal was preferred under s. 15 of the Letters Patent of the Calcutta High Court. Two of the Judges of that Court differed from the Chief; Justice; the Chief Justice thinking that Mr. Justice Pontifex's order was merely ministerial, and the other two Judges apparently thinking that his proceeding was more than ministerial. Mr. Justice Mitter pointed out that Pontifex, J., ought to have acted under s. 244 of Act X of 1877. Those two Judges considered that an appeal lay under s. 15, Letters Patent.
With regard to that case my observation is this, that apparently Mr. Justice Mitter considered that Mr. Justice Pontifex must have taken action or ought to have acted under s. 244 or 245 of the then Code. If Mr. Justice Pontifex 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 s. 588, Civil Procedure Code, could have applied to what he did. The term “an order” as defined in the present Code of 1882 would hardly be applicable to any direction which the Judge might give under s. 610, Civil Procedure Code. In the present Code an order is defined as “the formal expression of any decision of a Civil Court which is not a decree as above defined.”
As I understand it, under s. 610, all that a Judge has to do is to transmit the decree and give such direction as may be required, & c. I come to the conclusion that the case in the Privy Council does not apply to this case. On the other hand, we have two cases in the Indian Law Reports, 9 Madras, which I think bear directly on the present case.
The first of those cases is Achaya v. Ratnavelu in which Mr. Justice Muthusawmi Ayyar, in a very careful and elaborate judgment, [377] shows how the Code of Civil Procedure has affected s. 15 of the Letters Patent. The next, case is in re Rajagopal in which the present Chief Justice and Mr. Justice Parker held that an order passed under s. 592 of the Code of Civil Procedure, rejecting an application to appeal as a pauper, is not appealable. That was an appeal from an order of one of the Judges of that Court, who rejected an application to appeal as a pauper. In my opinion the correct view of the law as applicable to such cases is to be found in the two cases of the Indian Law Reports, 9 Madras, and is a view which we ought to follow. I may observe that considerable difference exists between s. 588 of the present Code and s. 588 of Act X of 1877, which was the Act under consideration in the case before the Judicial Committee. In my opinion this appeal should be dismissed with costs.
Tyrrell, J.:— I am entirely of the same opinion.
Appeal dismissed.