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TMI Blog1935 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... superintendence under the provisions of S. 107, Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108, Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108, Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a, Court, subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors, in Our or Their Privy Council, as hereinafter provided. 2. The corresponding clause in the Letters Patent of the other High Courts is in the same terms. The question propounded for determination by the Special Bench is : Whether an order of the High Court transferring a suit from a subordinate Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, (1890) 25 Q B D 465=59 LJQB 556 , Esher, M.R. after citing the above passage in the judgment of Cotton, L.J., in EX parte Chinery, (1834) 12 Q B D 342=32 W R 469=53 L J Ch 662=1 Morrell 31, pointed out that In the same case Bowen, L. J,, says that there is an inherent distinction between judgments and orders, and that the words 'final judgment' have a professional meaning, by which expression I think he meant to say, as Cotton, L.J., had previously said, that a 'judgment' is a decision obtained in an action; and if that was his meaning, both those learned Lords Justices gave judgment to the same effect, and Pry, L.J. agreed with them, A 'judgment,' therefore is a decision obtained in an action, and every other decision is an order. 6. Lindley, L.J. added that a "decree' of the Court of Chancery "is, of course, the equivalent term to a "judgment" in the Queen's Bench Division": See also I and 2 "Vic. C. 110, S. 18; 27 and 28 Vic. C. 112; 36 and 37 Vic. C. 66, S. 100; 15 and 16 Geo. 5, C. 49, S. 225. In Ex parte Moore, (1885) 14 Q B D 627=54 LJQB 190 =33 W R 438=2 Morrell 52, Cotton, L.J, reiterated and emphasize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., added that A "final judgment' is a final adjudication of the matters in contest in the action between the parties to the action. 9. Of course, in the popular sense of the word "order" every 'judgment' connotes that an order has been passed, but it does not follow, and it would be incorrect to affirm, that every "order" is a 'judgment', giving to the words the special meaning which lawyers would understand them to bear. I am of opinion that in the Letters Patent of the High Courts the word "judgment" means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. The term "suit" in the Letters Patent includes suits instituted by a plaint or by an originating summons in the manner prescribed under the rules of the Court : see S. 26, Civil P.C.; High Court Rules and Orders, Part 2 Ch. 1, Rr. 171 to 196; Provas Chandra v. Ashutosh Mukherji AIR 1930 Cal 258 =122 IC 197=56 Cal 979; In re Fawsitt Galland v. Burton, (1886) 30 Ch D 231-54 L J Ch 1131=34 W R 26 = 53 L T 271; In re Merchant, (1908) 1 K B 998 = 77 LJKB 695 = 24 T L R 375 = 52 S J 316= 98 L T 823; Johnse v. Refuge Assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t "no appeal shall lie from an order passed in the course of a suit and relating thereto prior to decree," would have been inserted in Cl. 14 of the first and Cl. 15 of the amended Letters Patent. 12. Moreover the view that we take of the meaning and effect of the term "judgment" in the Letters Patent is in consonance with the opinion that has been expressed by the Judicial Committee of the Privy Council on no less than three occasions, and I apprehend, it is not open to the Courts in India to construe the terra "judgment" as used in the Letters Patent in any other sense. In Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 =87 IC 313=30 C W N 459 (P C), Sir John Edge, delivering the judgment of the Board, categorically laid down that The term "judgment" in the Letters Patent of the High Court means, in civil cases, a decree and not a judgment in the ordinary sense. 13. In Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority of Bombay, 1923 PC 148=74 IC 469=50 IA 212=47 Bom 724 (P C), a Board of the Judicial Committee, consisting of Lords Dunedin, Atkinson and Wrenbury, had already placed the same construction upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "and from no other such orders." This raised the question neatly, whether an appeal, expressly given by S. 15, Letters Patent, and not expressly referred to in S. 588 of the Code of 1382, could be taken away by the general words of S. 588 '"and from no other such orders." The change in the wording of S. 104 of the Act of 1908 is significant, for it runs: "and save as otherwise expressly provided ........by any law for the time being in force, from no other prders," S. 15, Letters Patent, is such a law, and what it expressly provides, namely, an appeal to the High Court's appellate jurisdiction from a decree of the High Court in its original (sic) jurisdiction, is thereby saved. The regulations duly made by orders and rules under the Civil Procedure Code, 1908, are applicable to the jurisdiction exerciseable under the Letters Patent, except that they do not restrict the express Letters Patent appeal. 15. It appears therefore that the Judicial Committee in three cases have expressly and plainly laid down that the term "judgment" in the Letters Patent of the High Courts means "decree" and not "order," in the strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o construe the word "judgment" in any other sense, it would be a work of supererogation to analyse the numerous decisions upon this question. Their name is legion, and we are told that nearly 200 cases were cited at the Bar during the hearing of the reference. In the circumstances the effect of discussing these decisions in detail would, I apprehend, be merely to lengthen the judgment, and to shorten the patience of those who peruse it. 19. Nevertheless, it would be not unreasonable to ask why it is that what we regard as the manifest construction of the term "judgment" has not commended itself to the other High Courts. If I may venture to suggest an answer,--and I must be taken to speak with diffidence and great respect for those Judges who have construed the word "judgment" in a different sense--the reason appears to me to be twofold. In the first place, the main authorities on the meaning of the word "judgment" in the Letters Patent are the judgment of Sir Richard Couch, C.J., delivered in 1872 in Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Rang L R 433=17 W R 364 and the judgment of Sir Arnold White, C.J., in Tul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as a judgment. 21. On the other hand, in 1927 the same learned Chief Justice in Pahlad Rai v. Shiv Ram, 1927 Lah 540=102 IC 843=8 Lah 681 founding in that case also upon Sir Arnold White's definition of "judgment" held that an order refusing to transfer a case was not a "judgment" on the ground that It is true that an order directing a transfer puts an end to the case so far as the Court dealing with it is concerned, but the same thing cannot be said with respect to an order declining to transfer a case, 22. Surely, the judgment of Sir Arnold White in Tuljaram Row v. Alagappa Chettiar, (1912) 85 Mad 1=8 IC 340 (FB) cannot be relied on in support of both these diverse propositions. But apparently Shadi Lal, C.J., and it may be other learned Judges think that it can. Hinc illae lacrimae. 23. With all due deference however it appears to me that the definition of judgment" given by Sir R. Couch in Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Bang L R 433-17 W R 364, is too obscure to be of much value, the words "by determining some right of liability" of necessity provoking criticism and inviting trouble. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or not is a question which very often arises, and I have no desire myself to add to the literature which has accumulated thereon. The judgment of Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Bang L R 433-17 W R 364 is always referred to. But the attempt made therein to define judgment does not seem to have prevented in each casein which the question has arisen lengthy arguments being brought forward to show whether the particular decision before the Court was a judgment or not. After considering very carefully what was set forward as a definition of "judgment" in that case I prefer myself to consider each decision as it comes before me, and to form my own opinion whether it is a judgment or not for the purpose of deciding whether an appeal lies. 26. I feel bound to ask, with all due deference, what justification can there be for adopting such a course? If all that these observations mean is that in every case the Court must have regard to the form of the order in question it was not perhaps worth while to make them, and in any case they carry the matter no further. But if these learned Chief Justices intended to hold that in every case the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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