K M VENKATACHALA CHETTY Vs. VDNATESA CHETTY

JUDGEMENT

(1.) The question involved in this reference relates to the amount of court-fee payable upon a memorandum of appeal presented against a judgment delivered on the original side of the High Court declaring that a partnership subsisted between the plaintiff and the defendant in an action for dissolution of partnership and referring it to the Official Referee for the taking of the necessary accounts. The provisions which regulate the payment of the court-fee are Rules 35 and 36 of the High Court Fee Rules, 1933. They run thus: 35. Memorandum of appeal from a final judgment when the value of the subject- matter of the appeal does not exceed Rs. 2,500...Rs. 225. 36. Memorandum of appeal from any other judgment or order...Rs. 100.

(2.) The fee of Rs. 100 was paid by the appellant under Rule 36 and he contends that it is sufficient. The argument of his earned Counsel is, as the matter has been referred to the official referee for accounts, the suit cannot be said to be finally disposed of, and there was no final judgment within the meaning of Rule 35, and he was not bound to pay a higher court-fee than what he has done. An appeal lies from the judgment of a single judge in a suit instituted on the original side under Clause 15 of the Letters Patent. The word final is not to be found in Clause 15 but it occurs in Clause 39 of the Letters Patent where an appeal is provided to His Majesty in Council against the final judgment, decree or order of the High Court of Judicature at. Madras. It may be noticed that Clause 40 of the Letters Patent provides a similar appeal against any preliminary or interlocutory judgment, decree or order of the High Court under certain conditions specified in the said clause. So far as our High Court is concerned, there has been a judicial interpretation of what a judgment is within the meaning of Clause 15 of the Letters Patent in the Full Bench decision in Tuljaram Row V/s. Alagappa Chettiar (1910) 21 M.L.J. 1 : I.L.R. 35 Mad. 1 (F.B.) and ever since the date of the said decision, so far as I know, it has been treated as an authority on the said matter and subsequent decisions have in this Court uniformly adopted the interpretation given therein. According to the said decision the word judgment in Clause 15 would cover not only a final judgment but an interlocutory or preliminary judgment. But neither Arnold White, C.J., nor Krishnaswamy Aiyar, J., defined what a final judgment is. Krishnaswamy Aiyar, J., adopts the definition given by Black in his Book on Judgments, for explaining what an interlocutory judgment is. He seems to treat the terms interlocutory and preliminary as synonymous. It is unnecessary for me to consider whether this view is sound. I think it is enough to determine for the purpose of this reference what a final judgment means. If it is determined what a final judgment means, every judgment which is not final will be either interlocutory or preliminary.

(3.) The cases in English Law on the question what is a final judgment are not easy to reconcile, but the Judicial Committee for the purpose of the Letters Patent seems to have adopted the definition of final judgment as given by Cotton, L.J., in Ex parte Chinery (1884) 12 Q.B.D. 342 and by Lord Esher, M.R., in Onslow V/s. Commissioners of Inland Revenue (1890) 25 Q.B.D. 465. Vide Tata Iron and Steel Co., Ltd. V/s. Chief Revenue Authority of Bombay (1923) 45 M.L.J. 295 : L.R. 50 I.A. 212: I.L.R. 47 Bom. 724 at 733 (P.C.) In Ex parte Chinery (1884) 12 Q.B.D. 342 Cotton, L. J., observes: I think we ought to give to the words final judgment in this subsection their strict and proper meaning, that is, a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established.