SALEMAHOMED HAJI HAROON KABLY Vs. MAHOMED TAHER JAFFRANI

JUDGEMENT

(1.) THIS is an appeal against a judgment and order of Coyajee J. , on a notice of motion whereby he refused to appoint a Receiver of certain property. The defendant is the son of the plaintiff and the shares of the plaintiff and the defendant in the said property are 4 annas and 12 annas respectively. It is alleged that there are two existing mortgages for Rs. 15,000/- and Rs. 35,000/- on this property. The plaintiff says that these mortgages are bogus and the only person who can file a suit to set aside the mortgages, according to the plaintiff, is a Receiver if appointed of the said property and it is mainly in the ground that these mortgages ought to be set aside that an appointment of a Receiver was applied for. The learned Judge, although he came to the conclusion that there were circumstances in which the mortgages appeared to be suspicious, refused to appoint a Receiver but made an order for deposit of certain money per month for the share of the plaintiff in the income of the said property. It is against the order refusing the Receiver that the present appeal has been filed.

(2.) A preliminary objection has been raised as to the maintainability of the appeal. Now, it is clear that so far as this High Court is concerned, it has always adopted the definition of the word 'judgment' given by Couch C. J. , in the Justices of the Peace v. Oriental Gas Co. , 8 Beng LR 433 (A), as a guide in determining whether there is a judgment within the meaning of Clause 15 of the Letters Patent against which an appeal lies, and the definition is : "we think that "judgment" in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability". Therefore, the essence of the matter is to determine whether the order refusing a Receiver determines some right or liability between the parties.

(3.) NOW, it appears that the Rangoon and Allahabad High Courts have adopted a rule of practice whereby if an order is appealable under the Civil Procedure Code, it is held to be a judgment for the purpose or right of appeal under the Letters Patent. and Sadiq Ali v. Anwar Ali, ILR 45 All 66 at pp. 71-72: (AIR 1923 All 44 at p. 46) (C ). This view, however, has never prevailed with this Court; and there arc cases where an order is not appealable under the Civil Procedure Code it has been held to be appealable, if made on the Original Side of the High Court, under the Letters Patent and vice versa. We must, therefore, proceed to apply the ratio laid down by Chief Justice Couch in the Calcutta Case which this Court has always applied for determining what is a judgment.