S S BALAKRISHNA IYER Vs. PARVATHAMMAL

JUDGEMENT

(1.) This is a Letters Patent Appeal from the order of Mr. Justice Jackson in C.M.P. No. 4487 of 1926 dated 17 December, 1926. The suit in which the order was made was one for administration of the estate of a certain deceased person and the defendants asked for stay of proceedings in the suit before the Subordinate Judge. On the 3 September, 1926, Mr. Justice Jackson made an order of which the following is the relevant portion: Petitioner to give security for Rs. 44,000 as found by the Commissioners, to the satisfaction of the lower Court within three months. Otherwise the petition to stand dismissed with costs.

(2.) On the 3 December, 1926, the petitioners put in an application to extend the time for furnishing security. The matter came up on the 17 December, 1926, before Mr. Justice Waller who transferred it to Mr. Justice Jackson for hearing. Mr. Justice Jackson found that the period had expired as the Subordinate Judge had found the security to be insufficient and that, therefore, his order of the 3 September, 1926, became effective, i.e., that the petition was dismissed with costs. The learned Judge pointed out that the petitioner's proper course was either to apply for a review of the learned Judge's order or to apply to revise the Subordinate Judge's finding. He was of opinion that he could not cancel the dismissal contained in the order of 3 September and extend the period. It is against that order that the Letters Patent Appeal is brought.

(3.) The first question is whether any appeal under Clause 15 of the Letters Patent lies in this case, and whether the order of Mr. Justice Jackson of the 17 December is a judgment. The question was considered by a Pull Bench of this Court in Tuljaram Row V/s. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M. 1 : (1910) M.W.N. 697 : 8 M.L.T. 453 : 21 M.L.J. 1, and the then Chief Justice (Sir Arnold White) said inter alia that he was not prepared to infer that the word judgment in Section 15 is to be deemed to include any order in any interlocutory proceeding but that an adjudication is a judgment within the meaning of the clause if its effect 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, if its effect, if it is not complied with, is to put an end to the suit or proceeding but that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not a judgment within the meaning of the Letters Patent. He thought an order on an application for an interim injunction or for the appointment of a Receiver is a judgment within the meaning of the clause as although it was ancillary to the suit it was with a view to rendering the judgment effective if obtained. Mr. Justice Krishnaswami Iyer was of opinion that, however, wide the interpretation of the term judgment may be, it ought not to be understood to include interlocutory orders. That learned Judge did not recognise any distinction in principle between an order staying execution or refusing to stay and an order directing security for costs in an appeal. He thought that those orders affect the right of parties though temporarily and must be deemed to fall within the definition of judgment.