LEA BADIN Vs. UPENDRA MOHAN ROY CHOUDHURY

JUDGEMENT

(1.) The order from which this appeal has been preferred was made by Cunliffe., J. discharging an interim receiver appointed ex parte on the plaintiff's application pending her suit laid on the basis of an indenture of hypothecation. The order amounts to one rejecting an application to appoint a receiver. A preliminary objection has been taken to the competency of the appeal.

(2.) Under Clause 15, Letters Patent, there in unqualified right of appeal from the judgment of a single Judge on the Original Side. As regards the meaning of the word judgment as used in the clause, Courts in this, country have taken different views. So far as this Court is concerned the leading case on the point is that of Justices of the Peace of Calcutta V/s. Orient Gas Co. (1872) 17 WR 364, in which. Couch C.J. said, We think judgment in C1.15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.

(3.) In more decisions than one of this Court this definition of judgment given by Couch, C.J. has been described as classical; and yet in a long course of decisions this Court has repeatedly expressed the view that the definition is not absolutely exhaustive Mt. Brij Commaree v. Ramrick Dass (1901) 5 CWN 781, Gour Mohon V/s. Nayan Manjuri 1922 Cal 172, Mathura Sundari V/s. Haran Chandra 1916 Cal 361, Budhulal V/s. Chattu Gope 1918 Cal 850 and Ramendra Nath V/s. Braijendra Nath 1918 Cal 858. Treating this definition as not of an inflexing character and yet not expressly purporting to extend it, the Court has in numerous cases emphasized the necessity of scrutinizing the nature of the decision in each particular case in order to find out whether the decision amounts to a judgment within the meaning of the clause. It may be observed that Couch, C.J. himself in he case of Hadjee Ismail V/s. Hadjee, Mahomed (1874) 21 WR 303, held that an appeal lies under the clause from an order refusing to grant leave to the plaintiff to sue under Clause 12, Letters Patent, giving as his reason: It is not a mere formal order or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them, viz. to sue in a particular Court and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence.