SADASHIV GOVIND AKOLKER Vs. SOONDARDAS NARANDAS

JUDGEMENT

(1.) In this case the appellant presented a petition for leave to sue in forma pauperis on April 10, 1930. The learned Prothonotary in dealing with the matter under Rule 5 of Order XXXIII came to the conclusion that the allegations did not show a cause of action, because the claim as set out in the petition was barred by the Indian Limitation Act. The decision of the learned Prothonotary was upheld by the Judge in Chambers and it is against the decision of the Judge in Chambers that the present appeal is brought.

(2.) The first point taken by the respondent is that no appeal lies against an order of a Judge in Chambers refusing leave to sue in forma pauperis. That question turns on the meaning of the word judgment in Clause 15 of the Letters Patent. The meaning of judgment in that clause has been considered in most of the High Courts in India, and this Court has, in the case of Miya Mahomed V/s. Zorali (1909) 11 Bom. L.R. 241, followed the decisions of the Calcutta High Court in preference to decisions of the Madras High Court, the decisions of the Calcutta High Court giving to the word judgment a more restricted meaning than the decisions of the Madras High Court. In the leading Calcutta case on the subject, The Justices of the Peace for Calcutta V/s. The Oriental Gas Company (1872) 8 Beng. L.R. 433, the gist of the decision is contained, I think, in the sentence (p. 452):

(3.) "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." And it is that passage which has been approved of by this High Court. Accepting that passage as a correct statement of the law, in my opinion, the present order falls within the definition of judgment. I am not prepared to say, as the High Court of Rangoon has said in the case of Ma Than Myint V/s. Maung Ba Thein (1925) I.L.R. 4 Ran. 20, that judgment means a decision on some issue arising in the action; all that a judgment need do is to affect the merits of the question between the parties by determining some right or liability.