BROJO GOPAL ROY BURMAN Vs. AMAR CHANDRA BHATTACHARYA

JUDGEMENT

(1.) In this case a second appeal was presented out of time and the appellants (respondents before us) obtained a rule calling upon their opponents to show cause why the appeal should not be registered though filed out of time. The case made was that there had been a miscalculation of the time by the vakil acting in the matter of the presentation of the second appeal and that, in the circumstances, this amounted to a sufficient cause within the meaning of Section 5, Limitation Act. The rule came on for hearing before C.C. Ghose, J., and Buckland, J., who differed in opinion. Buckland, J., would have discharged the rule but C.C. Ghose, J., being the senior Judge, made the rule absolute and permitted the appeal to be filed and registered. From this order an appeal has been taken under Clause 15, Letters Patent, and at the hearing before us the competence of this appeal has been objected to on the ground that the decision of C.C. Ghose, J., was not a judgment within the meaning of that clause.

(2.) An opinion has been judicially expressed to the effect that the term " judgment " includes any decision or determination affecting the rights or interests of any suitor or applicant and that it is impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from: per Bittleston, J., in De Souza V/s. Coles [1868] 3 M.H.C. 384. In this Court, however, the contrary view has been well-settled. The well known definition of Couch, C.J., defines judgment as a decision which affects the merits of the question between the parties by determining some right or liability: The Justices of the Peace for Calcutta v Oriental Gas Co. [1872] 8 B.L.R. 433 ; but in more than one recent case it has been stated that this definition is not exhaustive.

(3.) The correct technical use of the word judgment as distinct from order was considered in England in the case of Ex parte Chinery [1884] 12 Q.B.D. 342, and Onslow V/s. Commissioners of Inland Revenue [1890] 25 Q.B.D. 465. According to these decisions a judgment is a decision obtained in an action and every other decision is an order. These cases were referred to with approval by the Judicial Committee and applied to the construction of the Letters Patent of the Bombay High Court in Tata Iron and Steel Co. V/s. Chief Revenue Authority A.I.R. 1923 P.C. 148. In view of the use of the word order in Clause 15, of our Letters Patent as they now stand, it may be doubted whether for the present purpose the correct technical use of the word judgment in England is a safe guide to the meaning of the clause. It was apparently upon some such principle, however, that the case of Gobinda Lal Das V/s. Shiba Das Chatterjee [1906] 33 Cal. 1323, was decided. In that case the senior Judge of a Division Bench had refused to extend the time for presenting, an appeal under Section 5, Limitation Act, and it was held upon Letters Patent Appeal that no appeal lay from this refusal. The reasoning was: It may no doubt be said that an order which terminates a proceeding is a judgment within the meaning of Clause 15, but it must be a proceeding, as we understand it, in the course of a suit or in relation thereto and in which some question or other as to the right or liability of any party is raised, and not a proceeding in respect of a matter which has already come to a termination by the operation of law or otherwise. This view was objected to by Mookerjee, J., in Mathura Sundari Dasi V/s. Haran Chandra Saha [1915] 43 Cal. 857, as going beyond the definition of the term judgment given by Couch, C.J., in Nagindas Motilal V/s. Nilaji Moroba Naik A.I.R. 1924 Bom. 399, the High Court of Bombay dissented from the reasoning in Gobinda's case, holding that an appeal lay under the Letters Patent from a refusal to extend time under Clause 5, Limitation Act. There is much force in the objections which have been taken to the decision in Gobinda's case and were the order appealed against before us an order refusing to extend time, and thereby putting an end to the litigation between these parties, we might well have thought it necessary to refer the question of the correctness of that decision to a Full Bench.