MADANLAL LACHMANDAS Vs. KEDARNATH SHERSINGHDAS

JUDGEMENT

(1.) In this case we have before us two appeals from the learned Chamber Judge. Appeal No. 53 of 1929 is from an order of September 2, 1929, giving conditional leave to the minor defendants Nos. 2 and 3 to defend the suit on depositing Rs. 30,000 in Court on or before September 16,1929. The other appeal, viz., No. 57 of 1929, is from an order of September 24, 1929, against these minor defendants for the amount of the decree claim, in default of security not having been furnished. The latter decree was passed ex parte.

(2.) A preliminary objection is taken by the respondents that no appeal lies from the first order imposing the condition in question : that that being so, the second order was rightly passed ex parte, and that no appeal lies from that also and we were referred to certain authorities of the Calcutta High Court and this Court as to the meaning to be given to the word " judgment" in Clause 15 of the Letters Patent.

(3.) Taking Appeal No. 57 first, that is from a final judgment against the minors, and it is clear, we think, that technically an appeal lies from that judgment, though whether on the merits it would have the slightest chance of success is another matter. That distinction between " whether an appeal lies " and " whether it has any chance of success " was indeed pointed out in the Full Bench case of Narayan Putapa V/s. Vaihunt Subaya (1926) I.L.R. 51 Bom. 67, s.c. 28 Bom. L.R. 1245 which my brother Kemp has referred to. There I said (p. 75) :- But to avoid any misconception I may add that though pro forma an appeal may lie, still in the vast majority of cases, the appeal will be one of those known as hopeless , because the conditions imposed by the lower Court will be reasonable ones, and accordingly if they are not fulfilled, the only result will be that the appeal will be dismissed with costs.