CENTRAL BROKERS Vs. RAMNARAYANA PODDAR AND CO

JUDGEMENT

(1.) The question referred to the Full Bench is as follows :

(2.) Clause 15 of the Letters Patent with which we are now concerned is dated 2812- 1865 and has undergone a few amendments which are unnecessary for consideration in the present context. Prior to that, there was an earlier Letters Patent dated 14-5-1862 which by Clauses 14 and 15 provided that the High Court should have appellate jurisdiction which was till then exercised by the Sudder Adawlut. It is a matter of common knowledge that the first Letters Patent dated 14-5-1862 was Issued after the Charter Act of 1861, 24 & 25 Queen Victoria, Ch. 104, was enacted, which by Section 8 provided for the abolition of the Supreme Court and Sudder Adawlut Courts and constituted a High Court having all the Jurisdiction and powers of the Courts abolished. The Letters Patent of 1362 was revoked by the one issued on 28-12-1865 which has continued till the present day with minor alterations and amendments. The Civil Procedure Code which was prevalent at the time both the Letters Patent were issued was Act 8 of 1859 which did not contain any definition of the word judgment. Sections 183 to 198 in Chapter IV of that Act dealt with judgments and decrees but there was no attempt made to give a precise definition of that term in the whole of the enactment. We have therefore to take it that the draftsmen of the Letters Patent or 1865, having before them the interpretation given to the word "judgment" in England at that time, must have intended to give that word the same connotation as was legally understood in England. Under Section 19 of the Judicature Act of 1873 there was an appeal provided from a judgment or order of one Judge of the High Court to the Court of appeal. But even in that Judicature Act we do not find any definition of the term. Under Section 27 (I) of Part IX, Division I of the Judicature Act of 1895, it was provided that an appeal lay to the Court of appeal from all orders and judgments of of the High Court with certain exceptions which are enumerated thereof. Appeals were absolutely prohibited in certain cases and no appeal lay in other cases, whereas appeals lay with the leave of the Court of first instance or of the Court of appeal in other instances. The reason why we do not find any exhaustive definition of the word "judgment" in the English statutes is due to the fact that any decision which was sought to be appealed against would come either within the meaning of the word "judgment" or "order", and in that case it was unnecessary for the Court to find out whether the decision appealed against would come within the category of either the one or the other.

(3.) How the word "judgment" was understood in England can be seen from observations of the various English Judges in a number of cases referred to by Page C. J. in -- 'Dayabhai Jiwandas v. Murugappa Chettlar', AIR 1835 Rang 267 (FB) (B). The learned Chief Justice refers to 'Ex parte Chinery' (1884) 12 Q B D 342 at 345 (C); ,- 'Onslow v. Commissioners of Inland Revenue', (1890) 25 Q B D 465 (D) and various other cases, He also referred to 'Ex parte Moore', (1885) 14 Q B D 627 (E); 'In Re: Reddell; Ex parte Earl of Straitmoore', (1883) 20 Q B D 512 (F), and came to the conclusion that the word "judgment" in Clause 13 of the Letters Patent of the Rangoon High Court (the equivalent to Clause 15 of our Letters Patent) means a "decree" in a suit by which the rights of the parties at issue in the suit are determined. The extreme view taken by the Rangoon High Court is probably in accordance with the interpretation put upon the word in the English Courts. But in India on the construction of Ol. 15 of the Letters patent of Calcutta, Madras and Bombay and the similar Clause 13 in the Letters Patent of the other High Courts there have been a large number of decisions taking one view or the other. So far as our court is concerned, the leading authority on the subject is a Full Bench decision reported in -- "Tuljaram Row v. Alagappa', 35 Mad 1 (FB) (G) which has stood the test of time for more than forty years and has not been dissented from in this Court at all. Under those circumstances we feel we are bound by that decision. Not only has this decision been consistently followed in, this Court but it has received the approval of the Calcutta High Court in -' Mathura Sundaridasi v. Haranchandra', AIR 1916 Cal 361 (H); -- 'Chandi Charan v. Jnanendra Nath', AIR 1919 Cal 667 at p. 663 (I); --'Lea Badin v. Upendra Mohan', AIR 1935 Cal 35 (J) and by a Full Bench of the Lahore-High Court in -' Shawhari Dial & Sons. v. Sohna Mal Beliram', AIR 1942 Lah 95 (FB) (K). The view taken by the Rangoon High Court in --'AIR 1935 Rang 267 (FB) (B)' has received the approval of the Nagpur High Court in --'Kunwarlal Singh v. Uma Devi', AIR 1945 Nag 166 (L), and --'Sankarrao v. Kalyanjl Bhai', AIR 1948 Nag 85 (M) as well as -- 'AIR 1952 Nag 357 (PB) (A)'. The Allahabad High Court in --'Shahzadi Begum v. Alakhnath', AIR 1935 All 620 (2) (FB) (N) has come to practically the same conclusion. The conflict between the various High Courts on this important " topic has been noticed by the Supreme Court in --'Asrumatidebi v. Rupendra Deb', , where his Lordship. Mukherjea J. held that an order for the transfer of a suit under Ol. 13 of the Letters Patent of the Calcutta High Court is not a judgment within the meaning of Clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent "as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground." After adverting to the conflict between the various High Courts and expressing a hope that at some future time it would be necessary for the Supreme Court to determine with as much definiteness as possible the true meaning and scope of the word "judgment" in Clause 15 of the Letters Patent, His Lordship states that in the particular case before the supreme Court viewed in any light the order of transfer would not be a judgment. His Lordship was inclined to agree with the definition of the word "judgment" given by Sir Richard Couch C. J. in the -- 'Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd.', 8 Beng LR 433 (P) and by Sir Arnold White C. J. in --'35 Mad 1 (FB) (G)'. The Supreme Court is therefore inclined to take the same view that was taken by Sir Arnold White C. J. in -- '35 Mad 1 (FB) (G)', where he lays down the test to be applied to find out what a "judgment' is.