RATANLAL JANKIDAS AGARWAL Vs. GAJADHAR

JUDGEMENT

(1.) THIS is a Letters Patent appeal from an order of Pollock J. rejecting the appellant's application under Order 41, Rule 21., Civil P.C., read with Order 42 of that Code, to rehear the second appeal in which decree had been passed ex parte by Niyogi J.

(2.) IT has been held in (1) L.P.A. No. 3 of 1940 of this High Court dated 27th August 1940; 1947 N.L.J. 26, (2) L.P.A. No. 10 of 1944 dated 4th December 1944 and (3) Kunwarlalsingh v. Shrimati Umadevi A.I.R. (32) 1945 Nag. 156 that the term 'judgment' referred to in Clause 10, Letters Patent for the Nagpur High Court means in civil cases a decree. The order appealed from does not come within the term 'decree' as defined in Section 2(2), Civil P.C., and so it is not appealable under Clause 10.

(3.) WE say this because, though Clause 10 gives a right of appeal "from the judgment of one Judge etc.," it limits this right by the portion which has been placed in brackets in the clause. The portion in brackets provides that notwithstanding what has been said above an appeal shall not lie without special leave in the following case, namely, when the 'judgment' has been passed "in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction."