9911796707
TMI Blog1935 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108, Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108, Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a, Court, subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors, in Our or Their Privy Council, as hereinafter provided. 2. The corresponding clause in the Letters Patent of the other High Courts is in the same terms. The question propounded for determination by the Special Bench is : Whether an order of the High Court transferring a suit from a subordinate Court to the High Court is a 'judgment' withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton, L.J., in EX parte Chinery, (1834) 12 Q B D 342=32 W R 469=53 L J Ch 662=1 Morrell 31, pointed out that In the same case Bowen, L. J,, says that there is an inherent distinction between judgments and orders, and that the words 'final judgment' have a professional meaning, by which expression I think he meant to say, as Cotton, L.J., had previously said, that a 'judgment' is a decision obtained in an action; and if that was his meaning, both those learned Lords Justices gave judgment to the same effect, and Pry, L.J. agreed with them, A 'judgment,' therefore is a decision obtained in an action, and every other decision is an order. 6. Lindley, L.J. added that a decree' of the Court of Chancery is, of course, the equivalent term to a judgment in the Queen's Bench Division : See also I and 2 Vic. C. 110, S. 18; 27 and 28 Vic. C. 112; 36 and 37 Vic. C. 66, S. 100; 15 and 16 Geo. 5, C. 49, S. 225. In Ex parte Moore, (1885) 14 Q B D 627=54 LJQB 190 =33 W R 438=2 Morrell 52, Cotton, L.J, reiterated and emphasized the view that he had expressed in EX parte Chinery, (1834) 12 Q B D 342=32 W R 469=53 L J Ch 662=1 Morrell 31. His Lordship observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Of course, in the popular sense of the word order every 'judgment' connotes that an order has been passed, but it does not follow, and it would be incorrect to affirm, that every order is a 'judgment', giving to the words the special meaning which lawyers would understand them to bear. I am of opinion that in the Letters Patent of the High Courts the word judgment means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. The term suit in the Letters Patent includes suits instituted by a plaint or by an originating summons in the manner prescribed under the rules of the Court : see S. 26, Civil P.C.; High Court Rules and Orders, Part 2 Ch. 1, Rr. 171 to 196; Provas Chandra v. Ashutosh Mukherji AIR 1930 Cal 258 =122 IC 197=56 Cal 979; In re Fawsitt Galland v. Burton, (1886) 30 Ch D 231-54 L J Ch 1131=34 W R 26 = 53 L T 271; In re Merchant, (1908) 1 K B 998 = 77 LJKB 695 = 24 T L R 375 = 52 S J 316= 98 L T 823; Johnse v. Refuge Assurance Co. Ltd., (1913) 1 K B 259=82 LJKB 411 =29 T L R 127= 57 S J 128=108 L T 242 and The King v. Westminster Assessment Committee, (1917) 2 K B 215= 86 LJKB 1161 = 81 J P 221 = 61 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that we take of the meaning and effect of the term judgment in the Letters Patent is in consonance with the opinion that has been expressed by the Judicial Committee of the Privy Council on no less than three occasions, and I apprehend, it is not open to the Courts in India to construe the terra judgment as used in the Letters Patent in any other sense. In Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 =87 IC 313=30 C W N 459 (P C), Sir John Edge, delivering the judgment of the Board, categorically laid down 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. 13. In Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority of Bombay, 1923 PC 148=74 IC 469=50 IA 212=47 Bom 724 (P C), a Board of the Judicial Committee, consisting of Lords Dunedin, Atkinson and Wrenbury, had already placed the same construction upon the term judgment as used in the Letters Patent of the High Courts. In that case for the purpose of deciding whether the appeal was competent or not, it was necessary for their Lordships to determine whether the order under review was a final judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prders, S. 15, 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 (sic) jurisdiction, is thereby saved. The regulations duly made by orders and rules under the Civil Procedure Code, 1908, are applicable to the jurisdiction exerciseable under the Letters Patent, except that they do not restrict the express Letters Patent appeal. 15. It appears therefore that the Judicial Committee in three cases have expressly and plainly laid down that the term judgment in the Letters Patent of the High Courts means decree and not order, in the strict legal sense in whose terms are understood and defined. But if only decrees are appealable under Cl. 13, Letters Patent, what orders are appealable, and in what circumstances does an appeal from an order lie? 16. Now an appeal is the creature of statute, for. An appeal does not exist in the nature of things. A right of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten the patience of those who peruse it. 19. Nevertheless, it would be not unreasonable to ask why it is that what we regard as the manifest construction of the term judgment has not commended itself to the other High Courts. If I may venture to suggest an answer,--and I must be taken to speak with diffidence and great respect for those Judges who have construed the word judgment in a different sense--the reason appears to me to be twofold. In the first place, the main authorities on the meaning of the word judgment in the Letters Patent are the judgment of Sir Richard Couch, C.J., delivered in 1872 in Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Rang L R 433=17 W R 364 and the judgment of Sir Arnold White, C.J., in Tuljaram Row v. Alagappa Chettiar, (1912) 85 Mad 1=8 IC 340 (FB) and upon one or other of these authorities hang or purport to hang all the law and the other decisions upon the subject. What Couch, C.J., meant by determining some right or liability, what White C.J., understood by suit or proceeding, have been canvassed over and over again in the various and often inconsistent judgments that have been delivered on the question under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, 22. Surely, the judgment of Sir Arnold White in Tuljaram Row v. Alagappa Chettiar, (1912) 85 Mad 1=8 IC 340 (FB) cannot be relied on in support of both these diverse propositions. But apparently Shadi Lal, C.J., and it may be other learned Judges think that it can. Hinc illae lacrimae. 23. With all due deference however it appears to me that the definition of judgment given by Sir R. Couch in Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Bang L R 433-17 W R 364, is too obscure to be of much value, the words by determining some right of liability of necessity provoking criticism and inviting trouble. The judgment of Sir Arnold White, in Tuljaram Row v. Alagappa Chettiar, (1912) 85 Mad 1=8 IC 340 (FB) which appears to me, if I may say so, to involve at least two inconsistent propositions, has also in many cases been placed in a crucible, and subjected to a process of refinement. The result has been that Sir Arnold White's judgment has not infrequently been interpreted in so elastic a sense that Courts purporting to follow it have felt at liberty to treat as appealable any orders which the Courts considered ought to be made subject to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of judgment in that case I prefer myself to consider each decision as it comes before me, and to form my own opinion whether it is a judgment or not for the purpose of deciding whether an appeal lies. 26. I feel bound to ask, with all due deference, what justification can there be for adopting such a course? If all that these observations mean is that in every case the Court must have regard to the form of the order in question it was not perhaps worth while to make them, and in any case they carry the matter no further. But if these learned Chief Justices intended to hold that in every case the Court is at liberty to determine ex cathedra whether an order is a judgment within Cl. 13 merely upon the terms of the particular order under consideration and without attributing any definite meaning to the word judgment in the Letters Patent, with all respect so to hold must necessarily lead to uncertainty and make confusion worse confounded. There is much more, in explanation or criticism of the authorities that might usefully be said, but I am anxious not to overload this judgment, and I must resist the temptation to dilate further upon them. It cannot be pretended, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
