KANHAIYA KASHIRAM GUJAR Vs. HIRAJI MOHANSINGH RAJPUT

JUDGEMENT

(1.) THE question that is referred is as follows: "Does a Letters Patent appeal lie against an order passed in review under Order 47, Rule 4, Civil P.C.? In point of fact, in this case the application was rejected, and the position that may arise were it granted is hypothetical. There is, in our opinion, a, certain inconvenience in dealing with a hypothetical question on reference. Order 47, Rule 1, Civil P.C., says that an order of the Court rejecting the application shall not be appeal-able. It is therefore clear that in this present, case there is no appeal under the Code. The question is whether there is one under the Letters Patent. Counsel on both sides seemed to think that Section 4 of the Code enabled it to be argued that if a Letters Patent appeal lay it was not prevented by the above. As to that we express a doubt. The Letters Patent do not expressly deal with such an appeal. The position is quite different from that, which arises where the Code is silent as to the right of appeal. In such a case there is no right of appeal under the Code, but a right may be given by some other Act or by the Letters Patent. Here, however, the right of appeal is expressly negatived, and in our opinion that is an end of the matter.

(2.) EVEN , however, if we be wrong as to this, we are of the opinion that the order rejecting an application to review is not a judgment within the meaning of the Letters Patent. In Secretary of State v. Mt. Geeta A.I.R. 1939 Nag. 122 we did not consider that the point was concluded by Sewak Jeranchod Bhogilal v. Dakore Temple Committee but that case has since been examined by the Federal Court, and in the light of Sulaiman, J.'s dissenting judgment therein, see Hori Ram Singh v. Emperor A.I.R. 1925 F.C. 43, we think that it must now be taken that "the term judgment in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense." We apprehend that the power to appeal from a Single Judge exercising second appellate jurisdiction to a Bench is intended to be restricted to cases where the decision arrived at is final. In the case of review there is already a 'judgment'. There is the decree of which review is sought. From that decree appeal lies but only with leave. Instead of leave being asked for, the aggrieved person applies for review, and it is urged that if that application is rejected, despite the Civil Procedure Code, appeal lies as of right. In our opinion this is not so. Apart from Order 47, Rule 7, such a decision is not a judgment within Clause 10. There has already been one final judgment viz., the decree it is sought to vary. That 'judgment' can be appealed from with leave. A Judge, if he apprehended that a mistake or slip had been made, would correct it, and the corrected decree would be a judgment from which, with leave, an appeal could be brought. If the Judge refused the application and refused leave that would be the end of the matter. The policy of the law is to put some end to litigation, and the end is reached in second appeal unless the litigant is allowed to continue.