ANWARA KHATOON Vs. MTHASAN BIBI

JUDGEMENT

(1.) The appellant before us is one of the plaintiffs in a suit instituted in the Court of the Subordinate Judge at Dacca. The defendants in that suit were the heirs of one Hafiz Mohammad Hossain as also the Receiver who had been appointed Receiver in an administration suit filed in the original side of this Court by some of the heirs of Haflz Mohammad Hossain against others. The said Receiver made an application in this Court under Clause 13 of the Letters Patent for the transfer of the suit instituted at Dacca to this Court. An order for transfer was made by this Court. That order for transfer was made in the absence of the appellant before us. The appellant before us later on made an application for revocation of the order of transfer, one of her grounds being that she had not been served with the rule nisi that had been issued for the transfer of the case. She also stated that it was not a fit case in which the suit instituted at Dacca ought to be transferred to this Court. Her application was dismissed. She has preferred an appeal, and in substance she challenges the order for transfer.

(2.) A preliminary objection has been raised before us as to the competency of the appeal. An appeal would lie in this case only under Clause 15 of the Letters Patent, that is "to say, an appeal would lie only if we can consider the order appealed against to be a judgment within the meaning of "that clause. In our opinion, it is not a judgment. The question whether a particular order made by a Judge on the original side is a judgment within the meaning of Clause 15 of the Letters Patent came up for consideration as early as 1872 in Justices of the Peace for Calcutta V/s. Oriential Gas Co., Ltd. ( 72) 8 Beng. L.R. 433 Sir Richard Couch in delivering the judgment laid down the general principle in the following words: We think that judgment in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. We need not quote further. The test so laid down has all along, so far as this Court is concerned, been treated as the correct test in such matters. The order sought to be revised by the appellant is an order which does not affect the merits of the question between the parties by determining some right or liability of theirs as involved in the Dacca suit. We are, accordingly, of opinion that the order is not appealable. This question was considered specifically in Khatizan V/s. Sonairam Daulatram 7 A.I.R. 1920 Cal. 797 where the Acting Chief Justice and Fletcher J. held that an order of transfer made under the extraordinary jurisdiction of this Court, namely, by virtue of the powers contained in Clause 13 of the Letters Patent is not a judgment within the meaning of Clause 16 of the Letters Patent. We ace bound by this decision and nothing has been said before us which would induce us to say that that view is wrong and would require reconsideration by the Full Bench. We are not unmindful, of the fact that a different view has been taken by I he Madras High Court in some cases reviewed in Krishna Reddy V/s. Thanikachala Mudali 11 A.I.R. 1924, Mad. 90 but we prefer to follow the view expressed by our Court.

(3.) We, accordingly, give effect to the preliminary objection and dismiss this appeal with costs. The Receiver will retain his costs, as between attorney and client, out of the assets of the estate in his hands and will pay these of the other respondents, as between attorney and client, out of the assets in his hands in the first instance. Sharpe, J.