SIMRATHMULL Vs. JUGRAJ

JUDGEMENT

(1.) The respondents in this appeal instituted in the original side of this court a suit, C. S. No. 400 of 1949, for the recovery of a sura of Rs. 10731-13-0 together with interest due thereon upto date of payment from the appellants. They filed the suit under Order 7 of the Original Side Rules which corresponds to Order 37, Civil P. C. The suit was Instituted on the Judgment of a foreign Court (The District Court of Jodhpur) which the plaintiffs had obtained against the defendants. The appellants took out two applications before the Master, namely, an application for leave to defend and an application for treating the suit as an ordinary suit. We are not concerned in this appeal with the former application as it remains still undisposed of. The Master allowed the latter application holding that a suit based on a foreign judgment did not fall within the class of suits included under Order 7, Rule 1 of the Original Side Rules. The plaintiffs filed an appeal against this order of the Master to the learned Judge in Chambers, Krisbnaswami Nayudu J. He allowed the appeal and dismissed the application made by the defendants. He was of the opinion that the suit had been properly instituted under Order 7 of the Original Side rules. It is against this order of the learned Judge that the above O. S. Appeal has been filed by the defendants.

(2.) A preliminary objection was taken on behalf of the plaintiffs respondents that no appeal lay as the order was not a Judgment within the meaning of that term in Clause 16 of the Letters Patent. No direct authority on the question which falls for decision in this case was brought to our notice by counsel on either side. The leading authority is the ruling of the Pull Bench in -- 'Tuljaram Rao v. Alagappa Chettiar', 35 Mad 1 (PB) (A). The test laid down therein by White C. J. which Has often been cited in later decisions, is as follows:

(3.) The test laid down in this case has been followed by this court in dealing with Several classes of orders. It was held in -- 'Surya Rao v. Rama-rao', AIR 1927 Mad 846 (B), that an order of a single Judge of the High Court refusing to revoke an order granting leave to sue on the original side of the High Court is not appealable under Clause 15 if the question of the jurisdiction of the High Court to entertain the suit is still open to the defendant and can be raised on an appropriate issue at the trial of the suit. An order refusing to transfer a suit or proceeding pending in one court to another court has been held to be not a judgment. -- 'Narasareddi v. Tar Mohammed', A. I. R. 1928 Mad 209 (C); and -- 'Kondayya v. Official Receiver, Nellore', (D). Interlocutory; orders like an order transposing a defendant as a plaintiff -- 'Official Assignee v. Ramalingappa', AIR 1928 Mad 554 (E); an order adding a party --'Rama-swami v. Kanniappa', AIR 1930 Mad 987 (P) and an order referring back a report of the Official Referee to him --'Maneckji v. H. H. Wadia', AIR 1923 Mad 470 (G) have all been held by this court, to be not judgments within the meaning of that clause, in all these cases the suit or proceeding was not put an end to and could continue though the party aggrieved by the order did suffer an in--jury for the time.