MOHD NAZAR AHMAD Vs. MOHD TAHIR ALI

JUDGEMENT

(1.) This is a special appeal from an order of our brother Nigam, rejecting the appellant's oral application made under Rule 6 of Chapter VIII of Rules of Court for a declaration that the case is a fit one for appeal. Our learned brother dictated the judgment in open Court in a second appeal. Subsequently, but before the judgment was transcribed and signed, the appellant made an oral application to our learned brother asking for a declaration that the case was a fit one for appeal. Our learned brother held that he had already delivered the judgment and was consequently functus officio and refused to give the declaration. The appellant files this appeal from the refusal.

(2.) The appeal is filed as a matter of right and not under a certificate from our learced brother declaring that his refusal to grant the declaration cm the ground given by him is a fit case for appeal. Under Rule 5 of Chap. VIII an appeal lies as a matter of right from the judgment or one Judge, barring certain judgments. The first question that arises is whether our learned brother's decision is a judgment within the meaning of this rule. We do not agree with the plea of Sri K. Section Varma that it is. Rule 6 expressly describes the order as an "order" and not a "judgment." The last sentence of the rule is "The Court shall thereupon record an order granting or refusing to grant such declaration." Thus the decision of our learned brother is an order and not a judgment according to Rule 6 itself and, therefore, is not appealable without special leave.

(3.) The word "judgment" is not defined in the Rules of Court. The definition of "judgment" contained in Section 2(9), C. P. C., was pressed upon us, but we are not sure that it applies in the present case. It defines the word as used in the Civil Procedure Code and not elsewhere, for example in the Rules of Court. Even if it does apply in the present case, we do not think that the order in question comes within its scope. Concededly it does not contain a statement of the grounds of a decree but does it contain the grounds of an order? The word "order" itself is denned in Section 2(14) to mean the formal expression of any decision of a civil court not amounting to a decree. Our learned brother's decision is by no means a formal expression of any decision. The word "order" as used in Section 2 (9) and (14) means what is popularly known as a "formal order" as distinguished from a "decree." "Judgment" itself Is distinguished from a "decree" by Section 2(9) and in the same way it must be distinguished from an "order." There cannot be a judgment unless there exists either a decree or an order; this confirms that "order" means a "formal order." Just as a decree itself cannot amount to a judgment so also an order itself cannot amount to a judgment. In the present case we have only a decision which cannot amount to both an order and a judgment within the meaning of Section 2(9) and (14), C. P. C.