GOBIND LAL NAKPHOPHA Vs. ADMINISTRATOR GENERAL OF BIHAR

JUDGEMENT

(1.) This is a Letters Patent Appeal against an order of Ramaswami J. passed in Testamentary Case No. 1 of 1954, by which he refused to recall his order dated 22-1-1954, under which order he had appointed the Administrator-General, Bihar, as administrator pendente lite. The facts are briefly as follows. One Janki Dal Gayawalin died on 7-9-1953 leaving certain valuable properties, and after her death Damodar Upadhya and Dwarka Upadhya, who will be referred to in this judgment as the Upadhyas, filed a suit in the Court of the Subordinate Judge of Gaya for declaration of their title with regard to the properties left by the deceased, and this suit was instituted against Gobind Lal Nakphopha and Shyam Lal Nakphopha who had propounded a will alleged to have been executed by Janki Das on 6-9-1953. The Upadhyas claimed to be nearest reversionary heirs of Janki Dai's husband, and a dispute arose between them and the Nakphophas. There was a proceeding under Section 144, Criminal P. C., in which the notice was ultimately made absolute against the Upadhyas. On 13-1-1954 the Administrator-General of Bihar filed an application in this Court for the grant of letters of administration to him in respect of the estate, properties and credits of the late Janki Dai, and on 19-1-1954 the said Administrator-General moved this Court for the grant of ad interim letters of administration. On 22-1-1954, Ramaswami J. ordered that the application for the appointment of administrator pendente lite will be heard, and in the meantime he appointed the Administrator-General, Bihar, as administrator pendente lite under Section 247, Succession Act read with Section 7, Administrator-General's Act (Act 3 of 1913). On 39-1-1954 Gobind Lal Nakphopha appeared in this testamentary case and filed a rejoinder to the grant of letters of administration to the Administrator-General of Bihar. This rejoinder was disposed of by Ramaswami J. by the order under appeal, and he dismissed the application made by Gobind Lal Nakphopha.

(2.) Gobind Lal Nakphopha has, therefore, preferred this appeal, and the learned Advocate-General who has appeared before us on his behalf has contended that the appointment of the Administrator-General, Bihar, as administrator pen-dente lite in this case is illegal and that the provisions of the Administrator-General's Act do not justify any such appointment.

(3.) The learned Government Advocate who has appeared before us on behalf of the respondents has raised a preliminary objection, and it is this that no appeal under the Letters Patent lies against the order of Ramaswami J. refusing to recall his previous order appointing the Administrator-General, Bihar, as administrator pendente lite. I have given my most anxious consideration to the preliminary objection raised by the learned Government Advocate, and my opinion is that this objection must succeed. It is important to note that no appeal has been preferred against the order of Ramaswami J. dated 22-1-1954 appointing the Administrator-General as administrator pendente lite. The present appeal is directed against the order refusing to recall the order dated 22-1-1954 which was passed on 26-3-1954. This appeal has not been and could not be treated as an appeal against the order dated 22-1-1954, because thirty days from 22-1-1954 had already expired (vide Chapter VII, Rule 2, at page 31 of the Rules of this High Court). The present appeal will, however, lie if it is to be regarded as an appeal under Clause 10 of the Letters Patent from a "judgment". What is to be regarded as a judgment within the meaning of the expression as it has been used in Clause 10 of the Letters Patent has been considered in -- several cases, and the weight of authority seems to be in favour of the opinion that an order of the nature passed by Ramaswami J. cannot be regarded as a judgment. As early as in the year 1872 it was ruled in -- 'Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd.', 17 Suth WR 364 (A) that the order for the Issuing of a mandamus within the meaning of Clause 15 of the Letters Patent of 1865 of Calcutta was not a judgment against which an appeal could lie. This question was considered at great length by a Full Bench of the Rangoon High Court in --'Dayabhai Jiwandas v. Murugappa', AIR 1935 Rang 267 (FB) (B), and I respectfully agree with the view of Page C. J. that the Privy Council has held at least in three cases that the term "judgment" in the Letters Patent of the High Courts means "decree" and not "order". Undoubtedly, an appeal is the creature of a statute and does not exist in the nature of things. Unless there is an express enactment giving a right of appeal from any decision of a tribunal, no appeal can lie. As Page, C. J., pointed out: