SANT PRASAD PANDE Vs. INDIRA BAI SARWATE

JUDGEMENT

(1.) THE question for consideration is as to what is the court-fee payable on the appeal preferred under Clause 10 of the Letters Patent against the judgment of the learned Single Judge in First Appeal. According to the appellant, the appeal being against the judgment and not decree Article 11 of the Schedule II of the Court Fees act is applicable and fixed fee of Rs. 7. 50/- is payable, but according to the respondent the judgment is nothing but decree and ad valorem court-fee is payable under Article 1 of Schedule I.

(2.) CLAUSE 10 of the Letters Patent of this Court provides for appeal against the judgment of one Judge of the Court. The appeal is against the judgment and not the decree. In England the word 'judgment' is generally used in the same sense as a decree in the Code of Civil Procedure. In the Code 'decree' is defined as formal expression of adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. 'judgment' is defined as the statement given by the Judge of the grounds of the decree. The Privy Council in Sevak jaranchod Bhogilal vs. The Dakora Temple Committee, AIR 1925 PC 155, in which the term 'judgment' in the Letters Patent has been construed to mean in civil cases a decree and not a judgment in the ordinary sense. The Privy Council was considering clause 39 of the Letters Patent of the Bombay High Court, providing for appeal to the privy Council against the final judgment, decree or order and is not identical to clause 15 (clause 10 of our Letters Patent) providing for appeal to High Court against the judgment of Single Judge.

(3.) HOWEVER, the classic definition of 'judgment' in Letters Patent is of Couch, C. J. in Justice of the Peace for Calcutta vs. Oriental Gas Co. , 8 BLR 433, to mean a decision which affects the merits of the question between the parties by determining some right or liability, it may either be final or preliminary or interlocutory, the difference between these being that the final judgment determines the whole cause or suit while preliminary or interlocutory judgment determines only part of it, leaving other matters to be determined. It was made clear that the word 'judgment' in Letters patent has a different meaning. The definition has been generally accepted by various decisions. The Full Bench of the Madras High Court in Tuljiram vs. Alagappa, 35 madras I, held that the order in an independent proceeding which is ancillary to the suit but with a view to rendering the judgment effective, if obtained, is a judgment. The full bench of the Rangoon High Court in Dayabhai vs. Muruguppa, AIR 1935 rangoon 267, and this Court in Manohar vs. Baliram, AIR 1952 Nag. 357, on the other hand held 'judgment' means and is decree in a suit by which rights of the parties in the suit are determined, in fact, controversies were as to what orders specially interlocutory orders come within the purview of 'judgment' in Letters Patent. But the controversy is set at rest by the Supreme Court by preferring the Calcutta and Madras views and overruling the Rangoon and Nagpur views in Shanti Kumar vs. Home insurance Co. , AIR 1974 SC 1719. The Court held that in finding whether the order is a judgment within clause 15, it has to be found out that the order affects the merits of the action between the parties by determining some legal right or liability. A large number of decisions were cited before me to show what orders are judgments but those decisions have no relevance here because we are considering this appeal against the judgment of the Single Judge finally disposing of the First Appeal. So there can be no dispute that it is a 'judgment' within Clause 10. We have to see as to whether in fact the appeal against the judgment in regular appeal is in effect an appeal against the decree.