MT SHAHZADI BEGAM Vs. ALAKH NATH

JUDGEMENT

(1.) Three questions have been referred to this Full Bench, for an expression of opinion by a Division Bench before which a Letters Patent appeal from an order of a Single Judge of this Court dismissing an application under Section 5, Limitation Act, came up for hearing. On 2 May, 1932, the appellant filed an application in this Court before, a Single Judge for leave to appeal in forma pauperism and that application, as required by Order 44, Rule 1 was accompanied by a memorandum of appeal containing the grounds of objections and also a prayer for the appeal being allowed. No court-fee was, of course, at that time paid on the memorandum of appeal. Both the application and the memorandum of appeal were received by the learned Judge and registered as a Miscellaneous Case, and were later on put up again before him on 9 May 1932 with an office report that the application was beyond time. On that date the applicant was not present in the Court room and her application for leave to appeal was rejected. No separate order was passed on the memorandum of appeal treating it as being in itself a separate appeal. On 23 May 1932, an application was filed on her behalf by a counsel purporting to be under Section 5, Limitation Act, accompanied by an affidavit and praying that the delay in the filing of the "appeal" be condoned. This application was dismissed by the learned Judge on 13 February 1933, after notice to the opposite party had been given. The learned Judge came to the conclusion that at that time there was properly speaking no appeal before the Court at all, and that therefore lie could not extend the time. It is from this order that a Letters Patent appeal has been preferred.

(2.) The learned Counsel for the applicant states that the application for extension of time was really for extension of time for leave to appeal and not for extension of time for the filing of the appeal, although inadvertently the word "appeal" instead of "application" was used in it. The first question which has been referred to us by the Division Bench is as to whether an appeal lies under Clause 10, Letters Patent, from the order passed by a Single Judge under Section 5, Limitation Act, refusing to extend the time for filing an appeal.

(3.) An appeal would lie if the order in question were "judgment" within the meaning of CLIO, Letters Patent. It has been held in numerous cases that as the Letters Patent were drafted long before even the earlier Code of 1882 was passed, the word "judgment" used therein does not mean the judgment as defined in the existing Civil P. C.. At the same time the word "judgment" does not include every possible order, final, preliminary or interlocutory passed by a Judge of the High Court. In several cases the word has been given a narrower and more restrictive meaning. In Ghasi Ram V/s. Mt. Nuraj Begam (1875-78) 1 All. 31 (F.B.), it was held that an order remitting issues to a Subordinate Court was not a judgment. In the case of Banoo Bibi V/s. Mehdi Husain (1889) 11 All. 375, it was laid down that an order refusing leave to appeal in forma pauperis was not a judgment and was not appealable under the Letters Patent. It was incidentally remarked in that case that an order which is not made appealable if passed by a lower Court would not be a judgment within the meaning of the Letters Patent. But that was a rough rule of interpretation and cannot be considered to be an exact definition of judgment. In the case of Muhammad Naimullah Khan V/s. Ihsanullah Khan (1892) 14 All. 226, it was laid down that an order directing the amendment of a decree passed by a learned Judge of this Court was not a judgment which would be appealable under the Letters Patent. Similarly in the case of Mansab Ali V/s. Nihal Chand (1893) 15 All. 359, it was held that an order dismissing an appeal for default of appearance was not a judgment and could not be appealed against.