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TMI Blog1952 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... s Patent of this Court? These appeals will be heard after the Full Bench has decided the point. OPINION (2) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. (4) I should not be understood to have differed from any 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. (5) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals 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 Code of Civil Procedure; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such proceeding as aforesaid..........to grant permission to such party to appeal against the same to Us............... (13) I may also point out that under Section 109 of the Code of Civil Procedure, 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. (14) 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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, because 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. (18) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (20) The same view was expressed by Krishnaswami 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Civil Procedure Code 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. (23) 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 proceeding; on the contrary, it enabled the proceedings to go on. (24) In 'ABDUL NABHI SAHEB v. RAMALAKSHAMAMAH': AIR 1948 Mad 371 Gentle C. J., and Bell J. held that the order of a single Judge granting stay was a judgment and, it 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;PUNNAYYA v. PARANDAMAYYAY: 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. (26) 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 'KONDAYYA v. OFFICIAL RECEIVER',: AIR 1951 Mad 676 and 'NARSA REDDI v. TAR MAHOMMED', 51 Mad 330.CASE', 35 Mad 1 FB. (27) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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. (31) 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasions there was an attempt to make some contribution to the discussion and it is, therefore, necessary to refer to those cases. (34) 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. RAMRICK DASS', 5 Cal W N 781, where Maclean, C. J., with whom Banerjee 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 'HURRISH CHUNDER v. KALI SUNDARI DEBI', 9 Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judgment within the meaning of Clause 15 of the Letters Patent and it was held that an appeal lay. (39) 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 Mookherjee J. in that case referred to his own decision in 'MATHURA SUNDARI v. HARAN CHANDRA', 43 Cal 857.(op. cit. sup.). (40) 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily a judgment if that order is given in interlocutory or ancillary matters. (45) 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. (46) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. (50) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst 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. (52) 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. ALAKHNATH', 57 All. 983 (F.B,). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustively 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.). (54) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 Civil Procedure Code. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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. (59) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Code of Civil Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. (65) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties 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. (70) 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary to discuss the matter any further. (71) 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 Civil Procedure Code. 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 Code of Civil Procedure, 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 (P C); 'RAHIMBHOY HABIBBHOY v. C. A. TURNER', 15 Bom 155 (P C) and 'ABDUL RAHMAN v. D. K. CASSIM SONS', 11 Rang 58 (P C), to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Full Bench was whether leave was necessary for judgments other than appellate judgments of a single Judge. (76) 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 DAYABHAI 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. (77) The learned Judges also referred to an unreported case of 'EKNATH v. GOPALRAO', L P A No. 3 of 1940 D/- 27-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. The learned 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. (80) 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 F B) (op. cit. sup.). (84) 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (88) One would not expect that there would be 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, Government of India Act 1935, that Court was required to expound the meaning of the term 'judgment' and Sulaiman, J. in 'HORI RAM SINGH v. EMPEROR', 1939 F C R 159 discussed the leading authorities on the subject including those which dealt with the term as used in the Letters Patent. His Lordship 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 P C 155) there can be no doubt that the term 'judgment in the Letters Patent means a decree. (89) The observations of Sulaima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Q B D 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; in Clause 15 or 10, as the case may be, of the Letters Patent to final decrees. (93) 'MOHAMMAD AMIN BROS. LTD. v. THE DOMINION OF INDIA', AIR 1952 F C 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. (94) 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 (P C). 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w side. In India that distinction is apparent when we notice that in the Civil Procedure Code the word 'judgment' has advisedly been left out, while in the Letters Patent the word 'judgment' is included. The Civil Procedure Code 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. 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 HABIBBHOY 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. Late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. (97) 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 Civil Procedure Code, 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. (98) 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. (99) In & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (104) 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 'ON-SLOW 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference 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. (110) 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. (111) 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 rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir 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. (114) 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 defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm 'decree' as used by their Lordships. It is impossible to hold that their Lordships used that word as defined in the Civil Procedure Code. (119) 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. (120) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. (125) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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