VAIJAYANTAPPA SHIRSAPPA IJARI Vs. ANASUYA WAMAN ANANT

JUDGEMENT

(1.) THE question that arises upon the preliminary objection taken by the respondents' advocate to this appeal from the order of Mr. Justice Divatia excusing the delay in filing First Appeal No.184 of 1938 in this Court, is whether that order is a ' judgment' within the meaning of clause 15 of the Letters Patent. THE respondents contend that such an order is but a preliminary step regulating procedure in the appeal and does not affect the merits of the case nor does it determine the rights between the parties, and that what it determines is that the appellant is not debarred from appealing, as in the absence of such an order he might have been so debarred. In other words, it has been contended that Inasmuch as it merely restores the appeal to an appealable condition, the order is not a ' judgment' and, therefore not appealable. On the other hand it is argued for the appellants that by the delay of the respondents a substantial right has accrued to the appellants in this appeal, namely the right to execute the decree without fear of its being challenged, and that therefore the order which deprives them of such a right is a judgment. THE word ' judgment' in clause 15 of the Letters Patent has been variously interpreted by the Indian High Courts. In some it has received a restricted interpretation, whilst in others a liberal or a very wide one. Scott C. J. in Miya Mahomed v. Zombi (1909) 11 Bom. L. R. 241 referring to the decisions in THE Justices of the Peace for Calcutta v. THE Oriental Gas Company (1872) 8 Beng. L. R. 433 and in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed : Hadjee Joosub Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. L. R. 91, observed that they have been regarded as leading decisions on this side of the country. In THE Justices of the Peace for Calcutta case Couch C. J. remarked (p. 452) : "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 ". THE point actually decided was that no appeal lay under that clause from an order directing the issue of a mandamus to the Justices of the Peace at Calcutta to compel them to refer to arbitration a question of compensation, In the case of Hadjee Ismail the same learned Judge observed that where there was an order refusing to set aside an order granting leave to sue to the plaintiff under clause 12 of the Letters Patent, it was not a mere formal order or an order merely regulating the procedure in the suit, but one that had the effect of giving jurisdiction to the Court which it otherwise would not have. THE definition in THE Justices of the Peace for Calcutta v. THE Oriental Gas Company, which has become classical, was referred to with approval in the more recent cases of Almeida v. Ramckandra Asavle (1938) Bom. 704 : s. c. 40 Bom. LR. 658 and Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai (1931) I. L. R. 56 Bom. 237 : s. c. 34 Bom. L. R. 12

(2.) IT is interesting to note how the term ' judgment' was interpreted by the Madras High Court. In Tuljaram Row v. Alagappa Chettiar (1910) I. L. R. 35 Mad. 1, f. b. White C. J. laid down a test to determine what a judgment is (p. 7): The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a 'judgment' within the meaning of the clause, An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a ' judgment' within the meaning of the Letters Patent. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained)-e. g. , an order on an application for an interim injunction, or for the appointment of a receiver is a ' judgment' within the meaning of the clause That is apparently a very much wider definition than the one given in The Justices of the Peace for Calcutta case and in my opinion it is a good working test for determining what a ' judgment' is under clause 15 of the Letters Patent. The criterion of finality of the decision involved in the test gives it the connotation of a decree. In Jeranchod v. Dakore Temple Committee (1925) 27 Bom. L. R. 872, p. c their Lordships of the Privy Council observed that the term ' judgment' in clause 39 of the Letters Patent, 1865, means, in civil cases, a decree, and not a judgment in the; ordinary sense. Those provisions are analogous to the provisions of clause 15

(3.) IN my opinion in all cases of this kind the effect of the order has to be decided upon the nature of the facts and circumstances in which it is made. With regard to the present case it is quite clear to me that it is merely a procedural step restoring the appeal to a condition in which the rights of the parties could be decided finally by this Court.