SADIQ ALI Vs. ANWAR ALI

JUDGEMENT

(1.) On the 27 of October, 1919, Sadiq Ali filed three second appeals in this Court making Abdul Baqi Khan and Anwar Ali respondents. Abdul Baqi Khan died on the 30 of June, 1920. When the Court reopened on January 3rd, 1921, Sadiq Ali had that day, and that day Only, upon which to take steps to get the heirs of Abdul Baqi Khan put on the record. Nothing was done on that day, and thereupon the appeals auxomatically abated. On January 4th, 1921, an application was made that the Court should set aside the abatement. That matter was heard by Mr. Justice Tudball, who subsequently declined to Bet aside the order, and the parties come up here in appeal.

(2.) The first point which has been taken by Mr. Iqbal Ahmad is that no appeal lies from the decision of Mr. Justice Tudball, and we propose to consider this matter, just because, if Mr. Iqbal Ahmad is right, we cannot inquire into the merits of the case and see if Sadiq Ali in his application to Mr. Justice Tudball alleged and proved that he was prevented by any sufficient cause from continuing his suit.

(3.) Whether an appeal lies from the decision of Ms. Justice Tudball must depend upon the proper construction of Section 10 of the Letters Patent, and the word upon which the whole matter hinges, is the word "judgment." The material passage of Section 10 is as follows:-- An appeal shall lie to the said High Court from the judgment of one Judge of the said High Court." Now, ought "judgment" in that passage to be given the very narrow interpretation of a decision obtained in an action or ought it to include those matters of judicial decision which are commonly spoken of as orders? This question has arisen in other cases and, as far back as 1895, this Court thought that the right construction of Section 10 of the Letters Patent was that the word judgment included all those types of decisions which are to be found in Section 12 of the Judicature Act of 1875. It may just be well to state what they are. Section 12 of the Judicature Act was providing for appeals to the Court of Appeals, and separating them into final and interlocutory appeals, and it defined those matters as "orders," "decrees" or "judgments." If we are prepared to follow Mr. Justice Burkitt in his construction of Section 10 it would follow that this appeal to us is entertainable by us. Mr. Justice Burkitt, in the case of Wall V/s. Howard (1895) I.L.R. 17 All. 438 observed: "In construing the word judgment in Section 10 of our Letters Patent, which were prepared in England and use the phraseology of the English Courts, it is impossible to give to it the restricted meaning of the word judgment as defined in the Civil P. C.. As used in England, it is wide enough to embrace the definitions of decree, judgment and order in that Code." The learned Judge then points out that in Section 10 of the Letters Patent the use of the world "sentence" or "order" in the exception as to criminal matters is significant, and by that he, no doubt, intends to convey that, in his opinion, the word "judgment" will have the wider significance of including orders and decrees. There is just a passage in the case of Tuljaram Row V/s. Alagappa Chettiar (1910) I.L.R. 86 Mad. 1 which may help to throw light on this matter. The question in that case was whether an order of a single Judge on the Original side, whereby he refused to frame an issue asked for by one of the parties, was an order from which an appeal could be had. The Chief Justice, at page 7 of the report, says as follows:-- "The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent." In the separate judgment of Mr. Justice krishnaswami Ayyar will be found collected in useful form a number of authorities in which the word judgment is discussed and the decision to which he ultimately came was that whilst the word "judgment" covered of course final orders, it also covered preliminary and interlocutory judgments but not preliminary or interlocutory orders. That was in strict consonance with the opinion of the Chief Justice and is an understandable interpretation of the word.