9911796707
Advanced Search 
TMI Blog1910 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he Letters Patent a distinction is drawn between final judgments, decrees or orders, and interlocutory judgments, decrees or orders, that the word ' judgment ' in Section 15 is to be deemed to include any order in any interlocutory proceeding. 4. 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. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut Brij Coomaree v. Ramrick Dass (1901) 5 Calc. W.N. 781. 10. The decisions in Commercial Bank of India, Limited v. Sabju Saheb I.L.R. (1901) Mad. 252 (an order dismissing an application by the assignee of a plaintiff to be brought on the record held appealable and in Vyasachary v. Keshavacharya I.L.R. (1902) Mad. 654 (an order dismissing a petition to receive a sum of money as security for coats of an appeal held appealable) in my opinion satisfy the test I have suggested. I should be prepared to hold that an appeal lay from an order refusing a stay of execution (the application for a stay being an ancillary proceeding) though a contrary view was taken in Srimantu Raja Yarlagadda Durga Prasada Nayudu v. Srimantu Raja Yarlagadda Mallikarjuna Prasada Nayudu I.L.R. (1901) Mad. 358. 11. With all respect I find myself unable to agree with the decisions in Veerabadran Chetty v. Nataraja Desikar I.L.R. (1905) Mad. 28 and in Maruthamuthu Pillai v. Kirishnamachariar I.L.R. (1907) Mad. 143, that an order for evidence to be taken on commission or an order refusing a commission is an appealable order. As regards the latter case I entirely agree with the observation of the learned Judges tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.L.R. (1905) Bom. 249 where it was held "that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file," Here the adjudication asked for, if made would have disposed of the suit. So also would an order made on an application to revoke a submission to arbitration. I think such an order is appealable, See Atlas Assurance Company, Limited v. Ahmedbhoy Habib-bhoy I.L.R. (1910) Bom. 1. 17. I agree with the view expressed by Garth, C.J., in Ebtahim V. Fuckhrunnissa Begum I.L.R. (1879) Cal. 531, on the point which has been referred to us and I think our answer to the question referred should be in the negative. V. Krishnaswamy Iyer, J. 18. In this case the defendant in Original Suit No. 117 of 1909 on the file of the High Court (Original Side) moved upon Judge's summons for certain additional issues before Mr. Justice Wallis. The learned Judge dismissed the summons and the defendant appeals under Clause 15 of the Letters Patent of 1865. The question has been referred to the Full Bench whether the order in this case is a judgment within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights 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." It is unnecessary to refer to other definitions some of which are collected in Chinnasami Mudali v. Arumuga Goundan I.L.R. (1904) Mad. 432. But these citations are hardly sufficient for defining the meaning of the term 'judgment' in the Letters Patent though they render us substantial assistance in arriving at the exact signification intended by the framers of the Letters Patent, We find the terms judgment, sentence, order, decree and preliminary or interlocutory judgment employed in the Letters Patent. It is necessary to understand the use of the term ' judgment' in Clause 15 in such a manner as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quittal which terminates in a criminal proceeding in favour of a prisoner as a sentence does the other way. The phrase "not being a sentence or order passed or made in any Criminal trial" was not in Clause 14 of the Letters Patent of 1862 which corresponded to Clause 15 of the later letters. It appears to have been inserted in Clause 15 of the Letters Patent of 1865 mainly to indicate the exception dot with in Clause 25 later, though it is not confined to a sentence or order in the exercise of Original Criminal Jurisdiction as Clause 25 is. 20. It was suggested in the course of the argument that Act VIII of 1859 which was in force at the time of the issue of the Letters Patent would be a valuable guide to the meaning of the word 'judgment' though the provisions of the Act were not binding as to what should be held to be appealable judgments. Having regard to the language of Clause 37 of the original Letters Patent and of the later letters the view appears to have been entertained that the class of appealable judgments must be confined to those that were appealable under the Code of Civil Procedure. Both in The Justices of the Peace for Calcutta v. The Oriental Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for a succession certificate or the appointment of a guardian, the pronouncement which terminates the proceeding has the characteristics of a judgment, though there is a formal difference in the designation of the proceeding (see Rule 4 Moffussil Rules of Practice). But the right of liability with reference to which the court adjudicates or declines to do so must be the substantive claim or liability and not as Mr. Sashagiri Ayyar tried to maintain a right to a particular judicial procedure or a detriment suffered in being danied the benefit of a rule of procedure. But I do not think we shall be justified in confining the term 'judgment' to final disposal of suits, appeals or original petitions or proceedings in execution. Preliminary or interlocutory judgments which ascertain rights and direct further inquiries which determine liabilities though further directions are given for ascertaining the measure of those liabilities must be deemed to fall within Clause 15. See however Rahmubhoy Hubibhoy v. Turner (1890) 18 I.A. 6 and Syed Muzhar Husein v. Bodha Bibi (1894) 22 I.A. 1, as to flail judgments under Section 595 of the Civil Procedure Code of 1882. 22. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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." I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment: for otherwise the rejection of a plaint for defect of form or insufficiency of court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning. I may also observe that the "part "which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account. The decision of Sonbai, widow of Fazul Habibhai v. Ahmed-bhai Habibhai (1872) 9 B.H.C.E. 398 is in substantial accord with the judgment of the High Court of Bengal though Chief Justice Sargent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 25 of the Small Cause Courts Act, Sir S. Sobramania Ayyar, officiating C.J., and Russell, J., defined ' judgment ' in Section 15 of the Letters Patent by confining it to an adjudication of the right or liability. But they regarded a refusal to interfere as no judgment, It was said that the Court had a discretion to interfere and a refusal to exercise a discretion was no judgment, This raises a question as to whether the refusal to exercise a discretion does not involve the application of the judicial mind as much as a decision in the exercise of discretion. Observations similar to those that have been made in this case are to be found in Srimanta Raja Yarlagadda Durga Prasada Nayadu v. Srimantu Raja Yarlagadda Mallikarjuni Prasada Nayadu I.L.R. (1901) Mad. 358 and in Appasamit Pillai v. Somisundara Mudaliar I.L.R. (1903) Mad. 437 in which letter case Benson and Boddam, JJ, refused to entertain an appeal from an order refusing leave to appeal in forma pauperis because it was within the discration of the Court to grant or refuse such leave. I am unable to agree in the principle enunciated in those decisions is regards discretionary orders and orders refusing to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Bang. L.R. 433, Howard v. Wilson I.L.R. (1879) Cal. 231, Ebrahim v. Fuckhrunnissa Begum I.L.R. (1879) Cal 531, Hurrish Chunder Chowdhry v. Kalisundary Debi (1883) I.L.R. 9 Cal. 482 (P.C), Toolsee Money Dassee v. Sudevi Dassee I.L.R. (1899) Cal. 361, Mussamut Brij Coomaree v. Ramrick Dass 5 C.W.N. 78, Gopinath Pati v. Moheswar Pradhan I.L.R. (1909) Cal. 1096 with the exception perhaps of the decisions in Mussamut Amirrunnessa v. Baboo Behary hall (1901) 25 W.R. 529, Mowla Buksh v. Kishen Pertab Sahi I.L.R. (1876) Cal. 102, Manly v. Patterson I.L.R. (1881) Cal. 339, Lutf Alikhan v. Asgur Rezi I.L.R. (1890) Cal. 455 and Kishen Pershad Panday v. Tiluckihari Lall I.L.R. (1891) Cal. 182 which are cases of leave to appeal to the Privy Council dealt with on special ground?, appear to be in accord with the principles I have endeavoured to formulate. So are also all the Bombay cases cited; Sonbai, widow of Fazul Habibhai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398, Hirji Jina v. Narran Mulji (1875) 12 Bom. H.C.R. 129, Vaghoji v. Camaji I.L.R. (1905) Bom. 249, Jehangir Cowasji v. The Hope Mills Limited I.L.R. (1909) Bom. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained away in the later decision in Mussamut Brij Coomaree v. Rarrrick Dass MANU/PR/0041/1901MANU/PR/0041/1901 : 5 C.W.N. 781. I have already dealt with the argument derived from the discretionary character of the order. If pushed to its full length it would cover all oases of specific relief which are within the discretion of the Court and the grant or refusal of such relief would cease to bo the subject of appeal under Clause 15 of the Letters Patent, a result which shows its weakness. It is difficult to distinguish in principle between an order staying execution or refusing to stay it and an order directing security for the costs of an appeal during its pendency. Though the failure to furnish the security may eventually lead to the dismissal of the appeal where security was ordered, the refusal to direct security is not attended with any such consequences, All these orders affect the right of the parties though temporarily and must be deemed to fall within the definition of judgment. It is worthy of note that in Kuppus'tymi Chetti v. Rathnavelucketti I.L.R. (1901) Mad. 514 an order for stay of execution and an order for security for costs referred to by way of illustration ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
