TARA CHAND Vs. MADHO PERSHAD

JUDGEMENT

(1.) These are two connected appeals under the Letters Patent against the order of a learned Single Judge of this Court refusing an application for stay of execution of a decree. Both the appeals may be conveniently disposed of in one judgment. A preliminary objection to the appeal has been taken by the respondents. It was contended that under Clause 10, Letters Patent, no appeal lies from an order of a learned Single Judge of this Court refusing an application for stay of execution. An appeal does lie under Clause 10, Letters Patent, if the order appealed against is a "judgment" within the meaning of that Section. Page C.J. in Dayabhai Jiwandas v. Murugappa Chettiar (1935) 22 AIR Rang 267 observed: What is the meaning of "judgment" in the Letters Patent of the Indian High Court? That is a question over which controversy has raged in India for nearly 70 years. It is still unsettled.

(2.) During the hearing of this appeal we have been referred to a large number of earlier decisions upon the point now under consideration and in our view it appears that as the discussion has proceeded through judgment after judgment, confusion has become worse confounded. Except in the Rangoon case above referred to, no complete definition of a "judgment" as that term is used in Clause 10, Letters Patent, has been attempted. After an exhaustive consideration of the authorities, a Bench of the Rangoon High Court consisting of seven Judges in the case already noticed held that the word "judgment" in the Letters Patent of the Indian High Court means a decree in a suit by which the rights of the parties at issue in the suit are determined.

(3.) So far as this Court is concerned, it is impossible to extract from many decisions upon the point a definition of "judgment" as that term is used in Clause 10, Letters Patent of the Court. The latest decision upon the point is the decision of a Full Bench in Shah Zadi Begam V/s. Alakh Nath . In that case it was decided that an order of a Single Judge dismissing an application under Section 5, Limitation Act, and refusing to extend time is not a "judgment" within the meaning of Clause 10 of the Letters Patent and accordingly no appeal lies from that order.