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PETITIONER: SHAH BABULAL KHIMJI

       Vs.

RESPONDENT: JAYABEN D. KANIA AND ANR.

DATE OF JUDGMENT10/08/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)

CITATION:  1981 AIR 1786            1982 SCR  (1) 187  1981 SCC  (4)   8        1981 SCALE  (3)1169  CITATOR INFO :  RF         1986 SC1272  (10,108,109)  RF         1988 SC 915  (17)  RF         1990 SC 104  (8)

ACT:      Code of Civil Procedure, 1908-Section 104 Order 43 Rule 1-Scope of-Letters  Patent-Clause 15-Right  of Appeal  under clause 15-If affected by section 104, Order 43 Rule 1.

HEADNOTE:      In a  suit for  specific performance of an agreement to sell filed on the original side of the Bombay High Court the plaintiff (appellant)  prayed for certain interim reliefs. A single Judge  of the High Court dismissed the application. A Division  Bench   of  the  High  Court,  on  appeal  by  the plaintiff, held  that the appeal was not maintainable on the ground that the impugned order of the single Judge was not a ’judgment’ within  the meaning  of clause  15 of the Letters Patent of the High Court.      In appeal  to this  Court it was contended on behalf of the appellant  that since the trial Judge is governed by the procedure prescribed  by the  Code of  Civil  Procedure,  by virtue of  the provisions  of section 104 read with Order 43 Rule (1) the impugned order is appealable to a larger Bench; (2) assuming  that the  Letters Patent  was a  special  law, section 104  read with  Order 43  is in  no way inconsistent with clause  15 of  the Letters  Patent; (3) even if section 104 read  with Order  43 Rule  1 does  not  apply  an  order refusing to  appoint a  receiver or  to grant injunction has the attributes  of finality  and, therefore,  amounts  to  a judgment’ within the meaning of Letters Patent.      Allowing the appeal ^      HELD:           (per Fazal Ali and A. Varadarajan, JJ.)             (Amarendra Nath Sen, J. concurring.)      Since the  Order of  the trial  Judge was  one refusing appointment  of   a  receiver   and  grant   of   ad-interim injunction, it  is a  ’judgment’ within  the meaning  of the Letters Patent  both because  order 43  rule  1  applies  to internal appeals  in the  High Court, and such an order even

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on merits  contains the  quality of  finality and would be a judgment within  the meaning of clause 15 of Letters Patent. Hence an  appeal is  maintainable to the Division Bench. The Division Bench was in error in dismissing the appeal without deciding it on merits. [259 F-G] 188      There is no inconsistency between section 104 read with Order 43  Rule 1,  C.P.C. and  appeals under Letters Patent. There is  nothing to  show that  Letters Patent  in any  way excludes or  overrides the  application of  section 104 read with Order  43 Rule  1 or that these provisions do not apply to internal appeals within the High Court. [237 E-F]      Code of  Civil Procedure 1877, by sections 588 and 589, did not  make any  distinction between  appeals to  the High Court from  the District  Court and  internal appeals to the High Court  under Letters  Patent. Notwithstanding the clear enunciation of law by the Privy Council that section 588 did not affect  nor was  it inconsistent  with the provisions of Letters Patent  and that, therefore, orders of a trial Judge which fall  beyond section  588 could  be  appealable  to  a larger bench under the Letters Patent if its orders amounted to a  ’judgment’ within  the meaning  of clause  15  of  the Letters Patent,  there was  a serious  controversy among the High Courts  on this  question. Section  104 of  the C.P.C., 1908 made  it clear that appeals against orders mentioned in Order 43  Rule 1  were not  in any way inconsistent with the Letters Patent  but  merely  provide  additional  remedy  by allowing appeals  against miscellaneous orders passed by the trial Judge to a larger bench. [205 E-G]      In dealing  with a  suit the  trial Judge has to follow the procedure  prescribed by  the Code.  It is  indisputable that any final judgment passed by the trial Judge amounts to a decree  and under  the provisions of the Letters Patent an appeal lies  to a  larger bench.  Letters Patent itself does not define  the term  ’judgment’ and  has advisedly not used the word  ’decree’ in  respect of  a judgment  given by  the trial Judge. [206 B-D]      Section 5  of the Code empowers the State Government to apply the  provisions of  the Code  where any  enactment  is silent as  to its applicability. Section 5 makes clear that, excepting the  Revenue Courts,  all other Civil Courts would normally be  governed by  the provisions  of the Code in the matter of procedure.[206H,207A]      Section 4  of the  Code  which  provides  that  in  the absence of  any  specific  provision  to  the  contrary  the provisions of the Code do not limit or affect any special or local law,  is not  applicable in  the instant  case because even if  the Letters  Patent is  deemed to  be a special law within the meaning of this section the provisions of section 104 do  not seek  to limit  or affect  the provisions of the Letters Patent. [207 B-C]      By force  of section  104 all  appeals, as indicated in the various  clauses of  Order 43  Rule 1,  would lie to the appellate court.  In short a combined reading of the various provisions of  the Code leads to the conclusion that section 104 read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of the High Court. [207 H; 209 B]      In the  instant case,  therefore, section 104 read with Order 43  Rule 1  does not  in any  way abridge or interfere with or  curb the  powers conferred  on the  trial Judge  by clause 15  of Letters  Patent. They  only give an additional remedy by  way of  appeal from the orders of the trial Judge to a  larger bench.  That being  so there is no force in the respondent’s argument  that these provisions do not apply to internal appeals in the High Court. [209 D-E]

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189      Hurrish Chunder  Chowdry v. Kali Sundari Debia, 10 I.A. 4, Mt. Sabitri Thakurain v. Savi & Anr. A.I.R. 1921 P.C. 80, Union of  India v.  Mohindra Supply Co., [1962] 3 S.C.R. 497 and Shankarlal  Aggarwal &  Ors. v. Shankarlal Poddar & Ors. [1964] 1 S.C.R. 71, referred to.      A number  of enactments, as for example, section 202 of the Companies  Act, 1956  and section  39 of the Arbitration Act widen,  rather than  limit, the original jurisdiction of the High  Court by  conferring additional  or  supplementary remedy by  way of  appeal  to  a  Division  Bench  from  the judgment of  a single  Judge.  On  a  parity  of  reasoning, therefore, section  104 read  with Order 43 Rule 1 expressly authorises and  creates a  forum for  appeal against  orders falling under  the various  clauses of  Order 43 Rule 1 to a larger  bench   of  the   High  Court   without  disturbing, interfering  with   or  over-riding   the   Letters   Patent jurisdiction.                          [211 B-C]      Dayabhai Jiwandas  & Ors. v. A.M.M. Murugappa Chettiar, I.L.R. 13 Rangoon 457, Sonbai v. Ahmedbhai Habibhai [1872] 9 Bom. HC  Reports. 398,  Rajagopal &  Ors. (in  Re. LPA  8 of 1886) ILR 9 Mad. 447, Ruldu Singh v. Sanwal Singh [1922] ILR 3 Lahore  188, Lea  Badin v.  Upendra Mohan  Roy Chaudhary & Ors. [1934-35]  39 CWN  155, Mathura  Sundari Dassi v. Haran Chandra Shaha & Ors. A.I.R. 1916 Cal. 361 Abdul Samad & Ors. v. The  State of  J &  K. A.I.R.  1969  J&K  52,  and  Kumar Gangadhar Bagla  v. Kanti  Chunder Mukerjee  & Anr.,  40 CWN 1264, approved.      Ram Sarup  v. Kaniz  Ummehani, ILR  1937 All. 386 over- ruled.      Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals  the principles  governing  these  provisions would apply  by process  of analogy. The provisions of Order 43 Rule  1 possess  the traits,  trappings and qualities and characteristics  of   a  final   order.  Although  the  word ’judgment’ has  not been  defined in  the Letters Patent but whatever test  may be  applied the order passed by the trial Judge appealed against must have the traits and trappings of finality. The  appealable orders  indicated in  the  various clauses of  Order 43  Rule 1  are matters of moment deciding valuable rights  of the  parties and  are in  the nature  of final  orders  so  as  to  fall  within  the  definition  of ’judgment’. [237G; 225 E-F]      Radhey Shyam  v. Shyam Behari Singh [1971] 1 S.C.R. 783 referred to.      Pandy Walad  Dagadu Mahar  & Anr.  v. Jamnadas Chotumal Marwadi, A.I.R. 1923 Bom. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi  & Ors,  A.I.R. 1940  Bom. 216; Vishnu Pratap & Ors. v.  Smt. Revati  Devi &  Ors.  A.I.R.  1953  All.  647; Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori &  Ors. A.I.R.  1940  Nagpur  39;  Ratanlal  Jankidas Agarwal v.  Gajadhar &  Ors.; A.I.R.  1949 Nagpur 188; Beads Factory &  Anr. v. Shri Dhar & Ors. A.I.R. 1960 All. 692; J. K. Chemicals  Ltd. v.  Kreba &  Co.; A.I.R.  1967  Bom.  56, overruled.      Having regard  to the nature of the orders contemplated in the  various clauses  of Order 43 Rule 1 which purport to decide valuable  rights of  the  parties  in  the  ancillary proceedings even  though the suit is kept alive these orders possess the  attributes or characteristics of finality so as to be  judgments within  the meaning  of clause  15  of  the Letters Patent. They are therefore, appealable to a larger 190 bench. The  concept of the Letters Patent governing only the

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internal appeals  in the  High Courts  and the Code of Civil Procedure having  no application to such appeals is based on a serious misconception of the legal position. [237H-238A-B]      The question  to be  decided in  this case  which is  a vexed and  controversial one  is as  to  what  is  the  real concept and  purport of  the word  ’judgment’  used  in  the Letters Patent.  The meaning of the word ’judgment’ has been the subject  matter of  conflicting decisions of the various High Courts  raging for  almost a  century  and  over  which despite the length of time no unanimity had been reached and it is high time that this controversy should be settled once and for all as far as possible. [238 E-F]      Out of  the numerous  authorities cited  three  leading judgments have spelt out certain tests for determining as to when an  order passed  by a  trial Judge can be said to be a ’judgment’ within  the meaning  of clause  15 of the Letters Patent and we are inclined to agree generally with the tests laid down  in these cases though some of the tests laid down are far too wide and may not be correct. [238 G-H]      While the  view taken  in the Justices of the Peace for Calcutta v.  The Oriental Gas Company (VIII Bengal L.R. 433) is much  too strict,  the one taken in T. V. Tuljaram Row v. M.K.R.V. Alagappa  Chettiar (ILR  35 Madras  1) is  much too wide. The correct test seems to lie somewhere in between the tests laid  down in  these cases.  Similarly the  full Bench decision in  Manohar Damodar  Bhoot v.  Baliram Ganpat Bhoot (AIR  1952  Nagpur  357)  pithily  described  the  essential requisites and  the exact  meaning of the word ’judgment’ as used in the Letters Patent. The pointed observations made in this case  try to  synthesize the conflicting views taken by the Calcutta and Madras High Courts. They represent the true scope and  import of  the word  ’judgment’ as  used  in  the Letters Patent.           [The Court  reviewed the  entire case  law on  the           subject laying  down various  tests  to  determine           what a judgment is.]      The test  for determining as to when an order passed by a trial  Judge can  be said  to be  a ’judgment’  within the meaning of the Letters Patent are:      (1) Where  an order,  which is  the foundation  of  the jurisdiction of  the Court  or one which goes to the root of the action, is passed against a particular party, it amounts to a judgment. [248 B-C]      Asrumati Debi  v. Kumar  Rupendra Deb Raikot [1953] SCR 1159      (2) An order dismissing an application for review would be appealable  under the  Letters Patent  being a  judgment, though it is not made appealable under Order 43 rule 1. [249 B]      State of  Uttar Pradesh  v.  Dr.  Vijay  Anand  Maharaj [1963] 1 SCR 1.      (3) The  Companies Act,  1956  which  confers  original jurisdiction on  the trial  Judge expressly  makes an  order passed by  the trial Judge under section 202 appealable and, therefore, any  order passed  under that  section  would  be appealable under  the Companies  Act and  is,  therefore,  a judgment. [249 C-D] 191      Shankarlal Aggarwal  v. Shankerlal  Poddar [1964] 1 SCR 717      (4) Whenever  a trial Judge decides a controversy which effects valuable  rights of  one of  the  parties  it  is  a judgment within the meaning of the Letters Patent. [249 H]      Radhey Shyam v. Shyam Behari Singh [1971] 1 SCR 783.      (5) Where  an order  passed by the trial Judge allowing

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amendment of  the plaint,  takes away from the defendant the defence  of   immunity  from  any  liability  by  reason  of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. [250 A-B]      Shanti Kumar  R. Canji v. The Home Insurance Co. of New York [1975] 1 SCR 550.      (6) Clause 15 of the Letters Patent does not define the term ’judgment’.  The Letters  Patent is a special law which carves out  its own  sphere and  it would not be possible to project the  definition of the word ’judgment’ as defined in the Code  of Civil  Procedure. Letters  Patent were  drafted long before the Code of Civil Procedure of 1882 was enacted. The word ’judgment’ used in the Letters Patent does not mean a ’judgment’  as defined  in the  Code. At  the same time it does not  include every possible order-final, preliminary or interlocutory passed by a Judge of the High Court. [251 D-E]      Mt. Shahzadi  Begum v. Alak Nath & Ors. A.I.R. 1935 All 628.      Under the  Code of  Civil Procedure a judgment consists of reasons  and grounds for a decree passed by a Court. As a judgment constitutes  the reasons for the decree, it follows as a  matter of  course that  the judgment  must be a formal adjudication which conclusively determines the rights of the parties with  regard  to  all  or  any  of  the  matters  in controversy. The  concept of  a judgment  as defined  in the Code seems to be rather narrow and the limitations engrafted by section  2(2) cannot  be  physically  imported  into  the definition of  the word  ’judgment’ as  used in clause 15 of the Letters  Patent because the Letters Patent has advisedly not  used  the  terms  ’order’  or  ’decree’  anywhere.  The intention of  the givers  of the Letters Patent was that the word ’judgment’ should receive a much wider and more liberal interpretation than  the word ’judgment’ used in the Code of Civil Procedure.  At the  same time,  it cannot be said that any order  passed  by  a  trial  Judge  would  amount  to  a judgment; otherwise  there will  be no  end to the number of orders which  would be  appealable under the Letters Patent. The word  ’judgment’ has  a concept of finality in a broader and not a narrower sense. [2 52 G-H; 253 A-C]      A judgment can be of three kinds:      (1) A final judgment: A judgment, which decides all the questions or issues in controversy so far as the trial Judge is concerned  and leaves  nothing else  to be  decided is  a final judgment.  This would  mean  that  by  virtue  of  the judgment, the  suit or  action brought  by the  plaintiff is dismissed or  decreed in  part or  in full.  Such  an  order passed by the trial Judge is a judgment within the 192 meaning of  the Letters  Patent and  amounts to  a decree so that an  appeal would lie from such a judgment to a Division Bench. [254 D-E]      (2) A  preliminary judgment: A preliminary judgment may be of  two forms:  (i) where  the trial  Judge by  an  order dismisses the suit without going into the merits of the suit but only  on a preliminary objection raised by the defendant or the  party opposing  on the  ground that  the suit is not maintainable. Since  the suit  is finally decided one way or the other,  the order  passed by  the trial judge would be a ’judgment’ finally  deciding the  cause so  far as the trial Judge is  concerned and,  therefore, appealable  to a larger bench; (ii)  where the  trial Judge  passes an  order  after hearing the  preliminary objections  raised by the defendant relating to  the maintainability of the suit as for example, bar of  jurisdiction, res judicata, a manifest defect in the suit, absence  of notice  under section  80 and the like. An

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order  of   the  trial   Judge  rejecting  these  objections adversely affects  a valuable right of the defendant who, if his objections were held to be valid, is entitled to get the suit dismissed on preliminary grounds. Such an order, though it keeps  the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be  construed to  be  a  judgment  so  as  to  be appealable to a larger bench. [254 F-H; 255 A-B]      (3) Intermediary or Interlocutory judgment: Most of the interlocutory orders  which contain  the quality of finality are clearly  specified in clause (a) to (w) of Order 43 Rule 1. They  are judgments  within the  meaning of  the  Letters Patent  and,   therefore,  appealable.  There  may  also  be interlocutory orders  not covered  by Order  43 Rule  1  but possessing the  characteristics and  trappings  of  finality because they  adversely affect a valuable right of the party or decide  an important  aspect of the trial in an ancillary proceeding. Before  such an  order can  be  a  judgment  the adverse effect  on the  party concerned  must be  direct and immediate rather than indirect or remote. Thus when an order vitally affects a valuable right of the defendant it will be a judgment  within the meaning of Letters Patent so as to be appealable to a larger bench. [255 C-E; 256 A]      Every interlocutory  order  cannot  be  regarded  as  a judgment but  only those  orders would  be  judgments  which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. [256 H-257 A]      The following  considerations should  prevail with  the Court in deciding whether or not an order is a judgment:      (1) The  trial Judge  being a  senior court  with  vast experience of  various branches of law occupying a very high status,  should   be  trusted   to  pass   discretionary  or interlocutory orders  with due  regard to  the well  settled principles of  civil justice.  Thus any discretion exercised or routine orders passed by the trial Judge in the course of the suit  which may  cause some  inconvenience or,  to  some extent, prejudice  one party  or the other cannot be treated as a judgment.[258D-E]      (2) An  interlocutory order, in order to be a judgment, must contain  the traits  and trappings  of finality  either when the  order  decides  the  question  in  controversy  in ancillary proceeding  or in  the suit itself or in a part of the proceedings. [258 G] 193      It is not the form of adjudication which has to be seen but its actual effects on the suit or proceedings. [243 H]      If irrespective  of the form of the suit or proceeding, the order  impugned puts an end to the suit or proceeding it doubtless amounts to a judgment. [244A]      If the effect of the order, if not complied with, is to terminate the  proceedings, the said order would amount to a judgment. [244 B]      An  order   in  an   independent  proceeding  which  is ancillary to  the suit,  (not being a step towards judgment) but is  designed to render the judgment effectively can also be termed  as judgment  within the  meaning of  the  Letters Patent. [244C]      An order  may be  a judgment even if it does not affect the merits  of the suit or proceedings or does not determine any rights  in question  raised in  the suit or proceedings. [244 D-E]      An  adjudication   based  on   a  refusal  to  exercise discretion, the  effect of  which is to dispose of the suit, so far  as that  particular adjudication is concerned, would

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amount to  a judgment  within the  meaning  of  the  Letters Patent. [244 E-F]      Some illustrations of interlocutory orders which may be treated as judgments may be stated thus:      (1) An  order granting  leave to  amend the  plaint  by introducing a  new cause  of action  which completely alters the nature  of the  suit and  takes away  a vested  right of limitation or  any  other  valuable  right  accrued  to  the defendant.                                                    [258 B-C]      (2) An order rejecting the plaint. [258 C]      (3) An  order refusing  leave to  defend the suit in an action under Order 37, Code of Civil Procedure. [258 C]      (4) An  order  rescinding  leave  to  the  trial  Judge granted by  him under  clause 12 of the Letters Patent. [258 D]      (5) An  order deciding  a preliminary  objection to the maintainability of  the suit  on the  ground of  limitation, absence of  notice under  section 80, bar against competency of the  suit against  the defendant  even though the suit is kept alive. [258 D-E]      (6) An order rejecting an application for a judgment on admission under Order 12 Rule 6. [258 E-F]      (7) An  order refusing  to add  necessary parties  in a suit under  section 92  of the Code of Civil Procedure. [258 F]      (8) An order varying or amending a decree. [258 F-G]      (9) An  order refusing  leave to sue in forma pauperis. [258 F-G]      (10) An order granting review. [258 F-G] 194      (11) An  order allowing  withdrawal of  the  suit  with liberty to file a fresh one. [258 G-H]      (12) An  order holding  that  the  defendants  are  not agriculturists within  the meaning  of the special law. [258 G-H]      (13) An  order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure. [258 H]      (14) An order granting or refusing to stay execution of the decree. [259A]      (15) An order deciding payment of court fee against the plaintiff. [259 B]           (per Amarendra Nath Sen J concurring)      On a  plain reading  and  proper  construction  of  the various provisions  of the  Code of Civil Procedure, section 104 of  the Code  applies to  the original  side of the High Court of  Bombay and  the impugned order of the single Judge is appealable  to a  Division Bench  under this section read with Order 43 thereof.        [279 H; 280 A]      The right  of appeal  under clause  15 of  the  Letters Patent is in no way curtailed or affected by section 104. By virtue of the provisions of section 104(1) a litigant enjoys the right  of preferring  an appeal  in respect  of  various orders mentioned therein, even though such orders may or may not be appealable under clause 15 of the Letters Patent as a judgment and  the right  of appeal  under clause  15 remains clearly unimpaired. [275 E-G]      The argument  of the  respondent, based  mainly on  the provisions of  sections  3  and  4  of  the  Code  of  Civil Procedure that  even if various other provisions of the Code apply to the Bombay High Court, including its original side, the provisions  of section  104 read with Order 43 could not apply to the original side of a Chartered High Court because the jurisdiction  conferred by  clause  15  of  the  Letters

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Patent is a special jurisdiction is without force. [267 B-C]      That  by  virtue  of  section  1  (which  provides  for territorial extent  of the  operation of the Code) the Civil Procedure Code applies to the State of Maharashtra cannot be disputed. [268 E-F]      Section 3  which deals  with subordination of Courts to the High Court has no bearing on the point in issue and does not create  any bar to the competence and maintainability of an appeal  from an  order passed  by a  single Judge  on the original side  if the  order is  otherwise appealable. While dealing with  any matter  on the  original side  of the High Court a  single Judge  is in  no way subordinate to the High Court. Nor  again, could  there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment.  If any  order passed  by him  on the original side is  a ’judgment’ within the meaning of clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G]      Similarly there  is no force in the argument that since section 104  and Order  43 of  the Code  affect the  special jurisdiction conferred on the High Court under 195 clause  15  of  Letters  Patent  these  provisions  are  not applicable to the present case. [273 C-D]      Section 4  of the Code cannot be said to be in conflict with the provisions of clause 15; nor can it be said that it limits or  otherwise affects  the power  and jurisdiction of the High Court under clause 15. [274 A-B]      Section 4  provides that  nothing in  the Code shall be deemed to limit or otherwise affect any special or local law in force  or any  special jurisdiction conferred by or under any law  for the  time being  in force. Clause 15 confers on the litigant  a right  to prefer an appeal from the court of original jurisdiction  to the  High Court  in its  appellate jurisdiction. It  confers a  right of appeal from a judgment of any  Judge on the original side to the High Court. Though this clause is a special provision it cannot be said that it is intended  to lay  down that  no appeal  would lie from an order of  a single  Judge  on  the  original  side  even  if specific provision  is made  in any statute making the order appealable. By virtue of this provision any order considered to be  a judgment  would be appealable. If a statute confers on the litigant right of appeal, it cannot be said that such provision would  affect the special provisions of clause 15. This special  power is  in no  way  affected  and  is  fully retained. In  addition, the  High Court  may be competent to entertain other  appeals by  virtue  of  specific  statutory provisions. [273 C-H: 274 A]      On the  contrary, the Code contains specific provisions indicating cases  in which  its provisions  are or  are  not applicable, as  for example  section 5, which makes specific provision regarding  the nature  and manner of applicability of the  Code to  revenue courts. Sections 116 to 120 clearly indicate that section 104 and order 43 apply to the original side of  the High  Court. Section  104 and Order 43 which is attracted by  section 104,  clearly provide  that an  appeal shall lie  from the  orders mentioned in rule 1 of Order 43. The  impugned  order  is  one  such  order  and  is  clearly appealable. When  the legislature  conferred such a right on the litigant  a Court  would be  slow to  deprive him of the statutory right merely on the ground that the order had been passed by  a single  Judge on  the original side of the High Court. [274 B-E]      Section 104 recognises that, apart from the orders made appealable  under  the  Code,  there  may  be  other  orders appealable by  any law  for the  time  being  in  force.  It

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further provides  that no  appeal will  lie from  any orders other than  orders expressly  provided in the Code or by any other law  in force.  The right of appeal against a judgment of a  single Judge on the original side under clause 15 is a right conferred by "any other law in force". [275 C-E]      Union of  India v. Mohindra Supply Co. [1962] 3 SCR 497 and Mt.  Savitri Thakurain  v. Savi  and Anr. [1921] P.C. 80 referred to.      Mathura Sundari  Dassi v.  Haran Chandra  Shaha, A.I.R. 1916 Cal.  361 and Lea Badin v. Upendra Mohan Roy Choudhary, A.I.R. 1935 Cal. 35 approved.      Vaman Raoji  Kulkarni v.  Nagesh Vishnu  Joshi,  A.I.R. 1940 Bom. 216 overruled.      Hurrish Chander Chowdhry v. Kali Sundari Debia, 10 I.A. 4, held in applicable. 196      Unless a  right is  conferred on him by law, a litigant does  not  have  an  inherent  right  of  appeal.  An  order appealable under  the C.P.C.  or any  other statute  becomes appealable because  the concerned statute confers a right of appeal on the litigant. But yet such an order may or may not be appealable  as ’judgment’  under clause 15 of the Letters Patent. An  order appealable under clause 15 as a ’judgment’ becomes appealable  because the  Letters Patent  confers the right of  appeal against such order as ’judgment’. Similarly an order  appealable under the Letters Patent may or may not be appealable under the Code. [281 C-E]      The Letters  Patent, by  clause 15,  confers a right of appeal against  a ’judgment’  and therefore  an order  which satisfies the  requirements of ’judgment’ within the meaning of clause  15 becomes  appealable. What  kind of  order will constitute a  ’judgment’ within  the meaning  of this clause and become appealable as such must necessarily depend on the facts and  circumstances of  each case and on the nature and character of the order passed. [281 F-G]      A comprehensive  definition of  ’judgment’ contemplated by clause 15 cannot properly be given. Letters Patent itself does not  define ’judgment’.  The expression has necessarily to be  construed and interpreted in each case. But yet it is safe to  say that  if an  order has  the effect  of  finally determining any  controversy forming  the subject  matter of the suit  itself or any part thereto or the same affects the question of  the Court’s  jurisdiction or  the  question  of limitation, it  normally constitutes  ’judgment’ within  the meaning of clause 15 of Letters Patent.                                                   [282 E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 662 of 1981      Appeal by  special leave  from the  judgment and  order dated the  15th January,  1981 of  the Bombay  High Court in Letters Patent Appeal No. 611 of 1980.      Soli J.  Sorabji G.L.  Sanghi, P.H. Parekh, P.K. Shroff and Gautam Philips for the Appellant.      R.P. Khambata,  B.R. Agarwala,  K.P. Khambata, Ashok C. Mehta and Miss Halida Khatun for Respondent No. 1.      K.K. Venugopal, R. Vaidya, M.B. Rele, Rajiv K. Garg and N.D. Garg for Respondent No. 2.      The following judgments were delivered:      FAZAL ALI,  J. This appeal by special leave is directed against an  Order dated  January 15,  1981 of  the  Division Bench of  the Bombay High Court by which the appeal filed by

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the appellant  against the  Order of  the  Trial  Judge  was dismissed on the ground that the appeal was not maintainable as the Order impugned was 197 not a  judgment within  the meaning  of  clause  15  of  the Letters Patent of the High Court.      After hearing  counsel for  the parties at great length we passed the following Order on April 22, 1981:-           "We have  heard counsel  for the  parties at great      length. In  our opinion,  the appeal  before  the  High      Court was  maintainable and  the High Court should have      entertained and decided it on merits.           We, therefore,  allow this  appeal, set  aside the      judgment dated  January 15,  1981 of the Division Bench      of the  Bombay High  Court and  remand the  case to the      same and  decide it  on merits.  The  High  Court  will      dispose of  the appeal  as  quickly  as  possible.  The      interim order passed by this Court on February 16, 1981      will continue  until the  High Court  disposes  of  the      appeal. Liberty  to parties  to approach the High Court      for  fixing   an  early   date  of   hearing.  In   the      circumstances, there will be no order as to costs. Reasoned judgment will follow."      We now set out to give the reasons for the formal Order allowing the  appeal which was passed by us on the aforesaid date.      As we  are not  at all  concerned with the facts of the case it  is  not  necessary  to  detail  the  same  in  this judgment. Suffice it to say that the plaintiff-appellant had filed a  suit on  the original side of the Bombay High Court for specific  performance of  a contract  and prayed  for an interim relief by appointing a receiver of the suit property and injuncting  the defendant  from disposing  of  the  suit property during  the pendency  of the suit. The single Judge after hearing the notice of motion dismissed the application for appointment  of receiver as also for interim injunction. Thereafter, the  plaintiff-appellant filed  an appeal before the Bombay  High Court  which dismissed  the appeal as being non-maintainable on  the  ground  that  the  Order  impugned (order  of   the  Single   Judge)  was  not  a  judgment  as contemplated by  clause 15 of the letters patent of the High Court. Hence, this appeal by special leave.      The substantial  questions of law raised in this appeal by the  Counsel for  the parties  are as to the scope, ambit and meaning of 198 the word  ’judgment’ appearing  in clause  15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters  Patent of  other High  Courts. We might mention here that  the significance of the word ’judgment’ assumes a special importance  in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These  High Courts  are Calcutta,  Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any  ordinary civil  jurisdiction  but  their  original jurisdiction is  confined only  to a few causes like probate and administration, admiralty and cases under Companies Act.      It seems  to us  that the  interpretation of  the  word ’judgment’ appearing in the Letters Patent of the High Court has been  the subject-matter  of judicial  interpretation by decisions  rendered   by  various   High  Courts  in  India. Unfortunately,  however,  the  decisions  are  by  no  means consistent or unanimous. On the other hand, there appears to be a  serious divergence of judicial opinions and a constant conflict between  the High  Courts regarding the true scope,

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ambit and  meaning of  the word  ’judgment’ appearing in the Letters Patent  so much  so that  a colossal controversy has been raging in this country for more than a century. Several tests have  been laid  down  by  leading  judgments  of  the Calcutta, Madras  and Rangoon High Courts. Other High Courts have either  followed  one  or  the  other  of  the  leading judgments regarding  the validity  of the tests laid down by the three  High Courts.  The Calcutta  High Court appears to have followed  the leading case of its court in The Justices of the  Peace for Calcutta v. The Oriental Gas Company where Sir Richard Couch, C.J. had laid down a particular test on a rather strict  and literal  interpretation  of  the  Letters Patent. Later  decisions of  the Calcutta  High  Court  have followed this  decision of Sir Richard Couch, C.J. with some modifications and  clarifications. The Madras High Court has taken a  very liberal  view in its decision in T.V. Tuljaram Row v.  M.K.R.V. Alagappa  Chettiar. The  Bombay High  Court seems  to   have  consistently   taken  the   view  that  no interlocutory order can ever be said to be a judgment within the meaning  of the  Letters Patent  so as  to be appealable from the  order of  a Single Judge exercising original civil jurisdiction (hereinafter referred to as ’Trial Judge’) to a larger Bench.  The Rangoon  High Court  speaking through Sir Page, C.J.  in In  Re Dayabhai  Jiwandas  &  Ors  v.  A.M.M. Murugappa Chettiur  has placed  a very narrow interpretation on 199 the term  ’judgment’ and has almost equated it with a decree passed by a civil court.      This  Court   also  has   incidentally  gone  into  the interpretation of  the word  ’judgment’ and has made certain observations but  seems to  have decided the cases before it on the  peculiar facts  of each  case without  settling  the conflict or  the controversy  resulting from  the  divergent views of the High Courts. This Court, however, has expressed a solemn  desire and  a pious  wish that the controversy and the conflict  between the  various  decisions  of  the  High Courts has  to be  settled once  for all  some time  or  the other.  In  this  connection,  in  Asrumati  Debi  v.  Kumar Rupendra Deb Raikot & Ors. this Court observed as follows:-           "In view  of  this  wide  divergence  of  judicial      opinion, it  may be  necessary for  this Court  at some      time or  other to examine carefully the principles upon      which the different views mentioned above purport to be      based  and   attempt  to   determine   with   as   much      definiteness as  possible the true meaning and scope of      the word  ’judgment’ as  it occurs  in clause 15 of the      Letters Patent  of the  Calcutta High  Court and in the      corresponding clauses  of the  Letters  Patent  of  the      other High  Courts.  We  are,  however,  relieved  from      embarking on such enquiry in the present case as we are      satisfied that  in none  of the views referred to above      could an  order of  the character  which we have before      us, be  regarded as  a ’judgment’ within the meaning of      clause 15 of the Letters Patent".      (Emphasis supplied)      Similarly, in the case of State of Uttar Pradesh v. Dr. Vijay Anand  Maharaj, this  Court noticed  the divergence of judicial opinions on the subject and observed as follows :-           "The scope of the expression "judgment" came under      the judicial scrutiny of the various High Courts, there      is a cleavage of opinion on that question.      ...          ...              ...                   ... 200           The foregoing  brief analysis  of  judgment  shows

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    that the  definition given  by the Madras High Court is      wider than  that given  by the Calcutta and Nagpur High      Courts. It  is not necessary in this case to attempt to      reconcile the  said decision or to give a definition of      our own, for on the facts of the present case the order      of Mehrotra, J., would be a judgment within the meaning      of the narrower definition of that expression".      After, however,  analysing the  various judgments  this Court did  not think  it necessary to give any definition of its own  and refrained  from giving  a final decision on the question as  to the scope and meaning of the word ’judgment’ appearing in  the  Letters  Patent.  Mudholkar,  J.  in  his concurring judgment  expressly refrained from expressing any opinion on the subject.      Again in a later decision in Shankarlal Aggarwal & Ors. v. Shankarlal  Poddar &  Ors. the  conflict in  the  various decisions of  various High Courts was again noticed and this Court observed as follows:           "There has  been very  wide divergence  of opinion      between the  several High  Court in  India  as  to  the      content of  the expression  ’judgment’ occurring in Cl.      15 of  the  Letters  Patent................We  consider      that occasion  has not arisen before us either since in      view of  the construction  which we  have adopted of s.      202 of  the Indian  Companies  Act  the  scope  of  the      expression ’judgment’  in the  Letters Patent  does not      call for examination or final decision". (Emphasis ours)      There are other decisions of this Court also which have touched the  fringes of  the question  but did not choose to give a  final verdict on the vexed question and preferred to decide the  cases on their own facts. We shall briefly refer to these decisions at a later stage of this judgment.      With due  deference to  the desire  of  this  Court  to settle the  controversy in  question once  for all, the very able, detailed and lengthy arguments advanced by counsel for the parties  on various  shades, features and aspects of the interpretation of the word ’judg- 201 ment’ appearing  in the  Letters Patent,  the serious  legal controversy raging  in  this  country  for  over  a  century between  the   various   High   Courts   resulting   in   an irreconciliable  element  of  judicial  uncertainty  in  the interpretation of  the law  and further having regard to the huge backlog and accumulation of arrears in the High Courts, we are  clearly of  the opinion  that the  time has now come when the  entire controversy on the subject should be set at rest and an authoritative pronouncement on the matter may be given by  us so  as  to  maintain  complete  consistency  in deciding the matter by the High Courts whenever it arises.      Mr. Sorabjee,  learned counsel  for the  appellants has submitted four  important points  of  law  dwelling  on  the various facts of the question at issue:      (1)  It was  contended that  the provisions  of s.  104           read with  order 43  Rule 1  of the  Code of Civil           Procedure, 1908  (hereinafter referred to as ’Code           of 1908’)  does not  impose any  bar on  the trial           held by  the Trial  Judge and  thus by  virtue  of           these provisions  the order impugned (the order of           the trial  court refusing  to appoint Receiver and           to grant  injunction) falls squarely under clauses           (r) and (s) of order 43 Rule 1 of the Code of 1908           and is therefore appealable to a larger Bench.                In amplification  of this  contention it  was                submitted that the Trial Judge is governed by

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              the procedure  prescribed by the Code of 1908                in all  matters and  hence there is no reason                why order  43 Rule  1 should not apply to any                order passed  by the Trial Judge under any of                the clauses  of order  43 Rule 1 read with s.                104.      (2)  Even if  we assume  that the  Letters Patent was a           special law  which overrides the provisions of the           Code of  Civil Procedure,  the power  under s. 104           read  with   order  43   Rule  1   is  in  no  way           inconsistent with  cl. 15  of the  Letters Patent.           Section 104  merely provides  an additional remedy           and confers  a new  jurisdiction on the High Court           without at  all interfering with or overriding the           existing provisions of the Letters Patent. 202      (3)  Even if  order 43  Rule 1  did not apply in terms,           the orders  which have  been  mentioned  as  being           appealable to  a larger  Bench could form valuable           guidelines  for  the  Court  in  arriving  at  the           conclusion that such orders amount to judgments of           the Single  Judge as  contemplated by  the Letters           Patent.      (4)  Even if  s. 104 read with order 43 Rule 1 does not           apply, an  order refusing to appoint a receiver or           to  grant   injunction  has   the  trappings   and           attributes of  finality  as  it  affects  valuable           rights of the plaintiff in an ancillary proceeding           though  the   suit  is   kept  alive   and  would,           therefore, amount to a judgment within the meaning           of the Letters Patent.      The  learned   counsel  for   the   respondents   while countering the  arguments  of  Mr.  Sorabjee  submitted  the following propositions:      (1)  S. 104  read with  order 43 Rule 1 could not apply           to the  original trial by the Trial Judge which is           governed by the Letters Patent alone.      (2)  It was further argued that the forum for an appeal           contemplated by  s. 104  is the  same as  that for           appeals under  sections 96  to 100  of the Code of           1908, that  is to  say, appeals from the courts in           the mofussil  (district courts)  to the High Court           and it  has no  application  to  internal  appeals           within the  High Court.  In other words, the forum           under which  an appeal  lies from one Judge of the           High Court  to a  larger  Bench  is  not  a  forum           contemplated by  s. 104  at all  but is created by           the Letters Patent.      (3)  If s.  104 of  the Code  of 1908  is  held  to  be           applicable to  proceedings before  the Trial Judge           of the  High Court  certain strange anomalies will           arise, viz.,  where an appeal lies from a district           court under order 43 Rule 1 before a Single Judge,           a further  appeal will have to lie before a larger           Bench  against   the  order  of  the  Trial  Judge           although s.  104 prevents  a second appeal against           miscellaneous orders  under order  43 Rule  1  and           permits only  one appeal.  This  will,  therefore,           lead to an inconsistent and anomalous position. 203      (4)  The word  ’judgment’ should  be strictly construed           as was done by Sir Richard Couch, C.J. in Oriental           Gas Company’s  case (supra)  so as to include only           those orders  of the  Trial Judge  which are  of a           final   nature    and   effectively   decide   the

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         controversy of the issues in dispute.      We would  first deal  with the  point relating  to  the applicability of  s. 104  read with  order 43  Rule 1 of the Code of  1908 because  it seems  to us that the arguments of Mr.  Sorabjee  on  this  score  are  well-founded  and  must prevail. Moreover,  some of  the decisions  of  this  Court, those of the Privy Council and other High Courts support the propositions adumbrated by Mr. Sorabjee.      In order,  however, to  appreciate the applicability of s. 104  read with  Order 43  Rule 1,  it may be necessary to examine some  important provisions  of  the  Code  of  Civil Procedure as  also the  previous history  which led  to  the enactment of  s. 104  by the  Code of  1908. It appears that prior to  the Code  of 1908  in the  earlier Code  of  Civil Procedure there were two kinds of appeals to the High Court- (1) appeals  against judgments  and  decrees  of  the  Trial Judge, and  (2) appeals against orders, either interlocutory or quasi-final,  passed by  the court during the pendency of the suit or proceedings. In the Civil Procedure Code of 1877 the section  corresponding to order 43 Rule 1 of the Code of 1908 was  s. 588  which provided for appealable orders under clauses (a) to (t). Section 588 of the Code of 1877 provided that an  appeal from any order specified in s. 588 shall lie to the  High Court or when an appeal from any other order is allowed by the Chapter it would lie to the Court to which an appeal would  lie from  the decree in the suit in respect of which such  order was made or when such order is passed by a court other  than the  High Court, then to the High Court. A perusal of ss. 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Courts from the district courts in the mofussils or internal appeals  to  the  High  Courts  under  the  Letters Patent. Section  591 clearly provided that except the orders mentioned in  s. 588  no further  appeal could  lie from any order passed  by any  court in  exercise of  its original or appellate jurisdiction. Section 591 may be extracted thus:-           "591. No  other  appeal  from  orders;  but  error      therein may  be  set  forth  in  memorandum  of  appeal      against decree. 204           "Except as  provided in  this chapter,  no  appeal      shall lie  from any  order passed  by any  Court in the      exercise of  its original or appellate jurisdiction but      if any decree be appealed against, any error, defect or      irregularity in  any such order, affecting the decision      of the  case, may be set forth as a ground of objection      in the memorandum of appeal".      In other words, the position was that while the statute provided only  for appeals against orders, all other appeals could  only   be  against  a  decree  passed  by  the  court concerned. The  statute there  fore, did not contemplate any other appeal except those mentioned in ss. 588 and 591.      The Code  of 1877  was later on replaced by the Code of 1882 but  the provisions  remained the  same. In view of the rather vague  and uncertain  nature of the provisions of ss. 588 to  591 a  serious controversy arose between the various High Courts  regarding the  interpretation of  s.  588.  The Bombay and  Madras High Courts held that under cl. 15 of the Letters Patent  of the said High Courts, an appeal could lie only from  orders passed under s. 588 and not even under the Letters Patent.  In Sonba’i  v. Ahmedbha’i  Habibha’i a Full Bench of the Bombay High Court held that under cl. 15 of the Letters  Patent   an  appeal  to  the  High  Court  from  an interlocutory order  made by  one of the Judges lies only in those cases in which an appeal was allowed under the Code of

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Civil Procedure,  that is  to say,  under ss. 588 and 591 of the Code  of 1877.  The Madras  High Court in Rajgopal & Ors (in Re:  L.P.A. No.  8 of 1886 took the same view. Then came the decision  of the  Privy Council  in the  case of Hurrish Chunder  Chowdry   v.  Kali   Sundari  Debia   which   while considering s. 588 made the following observations:-           "It only  remains to  observe that their Lordships      do not  think that  s. 588  of Act X of 1877, which has      the effect  of restricting  certain appeals is from one      of the Judges of the Court to the full Court."           (Emphasis ours) 205 This judgment gave rise to a serious conflict of opinions in the High  A Courts  in India.  The High  Courts of Calcutta, Bombay and  Madras held  that in view of the decision of the Privy Council  in the  aforesaid case,  even though an order may not  have been  appealable under  s.  588  it  could  be appealable provided  it was a judgment within the meaning of cl. 15  of the Letters Patent of the respective High Courts. Toolsee Money  Dassee v.  Sudevi Dassee,, Secretary of State v. Jehangir;  Chappan v. Modin Kutti, However, the Allahabad High Court  in Banno  Bibi v.  Mehdi Husain  held that if an order was  not appealable  under ss. 588 and 591 of the Code of 1877  it could  not be  appealed against  even under  the Letters Patent  of the High Court. This view was affirmed by a later decision of the same High Court in Muhammad Naim-ul- Lah Khan v. Ihsan-ul-Lah Khan.      With due  respect we  would like  to point out that the pointed and  terse observations of the Privy Council did not leave any  room for  any doubt or speculation in the matter. While construing  s. 588,  the Judicial Committee in Hurrish Chunder Chowdry’s  case  (supra)  had  made  it  clear  that appeals would  lie under  s. 588  to the  High Court and the section did  not contain  any restriction to the effect that appeal against the orders of the Trial Judge mentioned in s. 588 would  not lie  to a  larger Bench of the High Court. In other words,  the Privy Council intended to lay down clearly that s.  588 did not affect nor was it inconsistent with the provisions of  the Letters  Patent and hence those orders of the Trial Judge which fell beyond s. 588 could be appealable to a  larger Bench  under the Letters Patent if those orders amounted to  judgment within  the meaning  of cl.  15 of the Letters Patent.  Therefore, the views taken by the Calcutta, Bombay and  Madras High  Courts,  referred  to  above,  were undoubtedly correct.  At any rate, since a fresh controversy had  arisen,  the  legislature  stepped  in  to  settle  the controversy by  enacting the new s. 104 in the Code of 1908. Section 104  made  it  clear  that  appeals  against  orders mentioned  in   order  43   Rule  1  were  not  in  any  way inconsistent with  the Letters Patent and merely provided an additional remedy  by allowing appeals against miscellaneous Orders passed by the Trial Judge to a larger Bench. In other words, the  legislature gave  full statutory  effect to  the views of the Calcutta, 206 Bombay and  Madras High  Courts. Even after the introduction of s.  104, the  conflict between  the various  High  Courts still continued  as to  whether or not s. 104 would apply to internal appeals  in the  High Court.  That is  the question which we shall now discuss.      To begin  with, it  is not  disputed that a Trial Judge has to  follow the entire procedure laid down by the Code of 1908 starting  from the  presentation of the plaint right up to the  delivery of the judgment. The only difference in the assumption of  jurisdiction by the High Court is that a suit

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of a  particular valuation  has to be instituted in the High Court rather  than in  the District  court. Secondly,  it is indisputable that  any final  judgment that  the Trial Judge passes deciding  the suit  one way or the other amounts to a decree and  under the  provisions of  the Letters  Patent an appeal lies  to a  larger Bench which normally is a Division Bench as  provided for  under the Rules made by various High Courts. Thirdly,  the Letters  Patent itself does not define the term  ’judgment’ and  has advisedly  not used  the  word ’decree’ in respect of any judgment that may be given by the Trial Judge.  Section 5 of the Code of 1908 may be extracted thus:      "5.  Application of the Code to Revenue Courts:      (1)  Where any  Revenue  Courts  are  governed  by  the           provisions  of  this  Code  in  those  matters  of           procedure  upon   which  any   special   enactment           applicable to  them is silent the State Government           may, by  notification  in  the  Official  Gazette,           declare that  any portions  of those  pro  visions           which are  not expressly  made applicable  by this           Code shall  not apply  to those  Courts, or  shall           only apply  to them with such modifications as the           State Government may prescribe.      (2)  "Revenue Court"  in Sub-section  (1) means a court           having  jurisdiction   under  any   local  law  to           entertain suits  of other  proceedings relating to           the rent,  revenue or  profits of  land  used  for           agricultural purposes,  but  does  not  include  a           Civil Court  having  original  jurisdiction  under           this Code  to try  such suits  or  proceedings  as           being suits or proceedings of a civil nature "      The importance  of this  section is  that wherever  the provisions of  the Code  of Civil Procedure are sought to be excluded by any special enactment which may be silent on the point, the State 207 Government can  by notification  apply the provisions of the Code to Revenue courts. A bare perusal of this section would clearly reveal that excepting Revenue courts all other Civil courts would  normally be  governed by the provisions of the Code of  Civil Procedure in the matter of procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that  in the  absence of  any specific provision to the contrary  the provisions  of the  Code does not limit or affect any special or local law. Thus, the test contained in s. 4  is not  applicable in the instant case because even if the Letters  Patent of  the High  Court be  deemed to  be  a special law  as contemplated  by s.  4, the provisions of s. 104 do  not seek  to limit  or affect  the provisions of the Letters Patent.      This now  takes us  to s.  104 of the Code of 1908, the relevant portion of which may be extracted thus:-           "104.(1) An  appeal shall  lie from  the following      orders, and save as otherwise expressly provided in the      body of  this Code  or by any law for the time being in      force, from no other orders:-      (a)  to (f) annulled;      (ff) an order under section 35-A      (g)  an order under section 95;      (h)  an order  under any of the provisions of this Code           imposing  a   fine  or  directing  the  arrest  or           detention in the civil prison of any person except           where such  arrest or detention is in execution of           a decree;           (1)  any order  made under  rules  from  which  an

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              appeal is expressly allowed by rules:           (2)  No appeal  shall lie from any order passed in                appeal under this section."      Thus by the force of s. 104 all appeals as indicated in the various clauses of order 43 Rule 1 viz. (a) to (w) would lie to  the appellate  court. Section  105 clearly  provides that no  appeal shall lie  from any order of a Court made in the exercise of its original or appellate 208 jurisdiction except  according to the procedure laid down by the Code.  The relevant  part of s. 105 (1) may be extracted thus:           "105. (1)  Save as otherwise expressly provided no      appeal shall  lie from any order made by a Court in the      exercise of its original or appellate jurisdiction; but      where a  decree is  appealed from, any error, defect or      irregularity in  any order,  affecting the  decision of      the case,  may be set forth as a ground of objection in      the memorandum of appeal."      Finally, order,  49 Rule  3 expressly  exempts  matters contained in clauses (1) to (6) of Rule 3 from the operation of the  extraordinary original  civil  jurisdiction  of  the chartered High  Courts, that  is to  say,  the  jurisdiction conferred on  the High  Court by  the  Letters  Patent.  The relevant portion of this provision may be extracted thus:      "O. 49.      (3)  The  following   rules  shall  not  apply  to  any           Chartered  High  Court  in  the  exercise  of  its           ordinary   or    extraordinary   original    civil           jurisdiction, namely:-      (1)  rule 10  and rule  11, clauses (b) & (c), of order           VII;      (2)  rule 3 of order X;      (3)  rule 2 of order XVI;      (4)  rules 5,  6, 8,  9, 10, 11, 13, 14, 15, and 16 (so           far as  relates to  the manner of taking evidence)           of Order XVIII;      (5)  rules 1 to 8 of order XX; and      (6)  rule 7  of order  XXXIII (so far as relates to the           making of a memorandum);      and rule  35 of  order XLI  shall not apply to any such      High  Court   in  the   exercise   of   its   appellate      jurisdiction"      It may  be pertinent  to note that although a number of rules have  been exempted  from the  operation of  the Code, order 43 Rule 209 1 and  the clauses thereunder have not been mentioned in any of these clauses.      Thus, a  combined reading  of the various provisions of the Code  of Civil  Procedure referred  to above lead to the irresistible conclusion  that s. 104 read with order 43 Rule 1 clearly  applies to the proceedings before the Trial Judge of the  High Court. Unfortunately, this fact does not appear to have  been noticed  by any  of the  decisions rendered by various High Courts.      We might  further point  out that s. 117 of the Code of 1908 expressly  applies the  provisions of  the Code to High Courts also. Section 117 may be extracted thus:           "117. Save  as provided  in this Part or in Part X      or in rules, the provisions of this Code shall apply to      such High Courts".      We  find  ourselves  in  complete  agreement  with  the arguments of  Mr. Sorabjee  that in  the instant case s. 104 read with  Order 43  Rule 1  does not  in any  way  abridge,

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interfere with  or curb  the powers  conferred on  the Trial Judge by cl. 15 of the Letters Patent. What s. 104 read with order 43  Rule 1 does is merely to give an additional remedy by way  of an appeal from the orders of the Trial Judge to a larger Bench.  Indeed, if  this is  the  position  then  the contention of  the respondent  that s. 104 will not apply to internal appeals  in the High Courts cannot be countenanced. In fact,  the question  of application  of the Code of Civil Procedure to  internal appeals  in the  High Court  does not arise at  all because  the Code  of Civil  Procedure  merely provides for  a forum  and if  order 43  Rule 1 applies to a Trial Judge  then  the  forum  created  by  the  Code  would certainly include  a forum  within the  High Court  to which appeals against  the judgment of a Trial Judge would lie. It is obvious  that when  the Code contemplates appeals against orders passed  under various clauses of order 43 Rule 1 by a Trial Judge, such an appeal can lie to a larger Bench of the High Court  and not  to any  court subordinate  to the  High Court. Hence, the argument that order 43 Rule 1 cannot apply to internal  appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts.      We might also reiterate that prior to the Code of 1908, in the  Code of  1877 an  identical provision  like order 43 Rule 1  also existed  in the  shape  of  s.  588  which  was absolutely in the same terms 210 as order  43 Rule  1 and  its various  clauses.  Of  course, section 104  was conspicuously absent from the Codes of 1877 or  1882.   As  indicated   earlier,  the  question  of  the application of  s. 588  (now Order 43 Rule 1) was considered as early  as 1882 in Hurrish Chunder Chowdary’s case (supra) where the  Privy Council  in very categorical terms observed thus:-           "It only  remains to  observe that their Lordships      do not  think that  s. 588  of Act X of 1877, which has      the effect  of restricting  certain appeals, applies to      such a  case as  this, where  the appeal is from one of      the Judges of the Court to the full Court."      We  have   already  shown   that  a  perusal  of  these observations leaves no room for doubt that the Privy Council clearly held  that s. 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now  means the  Division Bench  constituted under the Rules. In  spite of  the clear  exposition of the law on the subject by  the Privy  Council it is rather unfortunate that some  High   Courts   have   either   misinterpreted   these observations or explained them away or used them for holding that s.588 does not apply to High Courts. We shall deal with those judgments  and point  out that  the view  taken by the High Courts  concerned is  not at all borne out by the ratio decidendi of  the Privy Council. So far as the applicability of s. 588 to proceedings in the High Courts is concerned, in a later  decision the  Privy Council  reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi & Anr., their Lordships observed as follows:           "Section 15  of the  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 ordinary jurisdiction,      is thereby  saved. Thus regulations duly made by orders      and Rules  under the  Code of Civil Procedure, 1908 are      applicable to  the jurisdiction  exercisable under  the      Letters Patent,  except that  they do  not restrict the      express Letters Patent appeal".

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    Though not  directly, some  observations made  by  this Court also  support the  consistent view  taken by the Privy Council that  order  43  Rule  1  applies  to  the  original proceedings before the Trial 211 Judge. In  Union of India v. Mohindra Supply Co., this Court made the following observations:-           "The intention of the legislature in enacting sub-      s. (1)  of  s.  104  is  clear:  the  right  to  appeal      conferred by  any other law for the time being in force      is expressly preserved. This intention is emphasised by      s. 4 which provides that in the absence of any specific      provision to  the  contrary  nothing  in  the  Code  is      intended to  limit  or  otherwise  affect  any  special      jurisdiction or  power conferred  by or under any other      law for  the time  being in  force. The right to appeal      against judgments  (which did  not amount  to  decrees)      under the Letters Patent, was therefore not affected by      s. 104 (1) of the Code of Civil Procedure, 1908".      Thus, this  Court has  clearly held  that the  right to appeal against  judgments under  the Letters  Patent was not affected by  s. 104 (1) of the Code of 1908 and the decision therefore fully  supports the  argument of Mr. Sorabjee that there  is   no  inconsistency  between  the  Letters  Patent jurisdiction and  s. 104  read with  order 43  Rule 1 of the Code of  1908.  Similarly,  in  Shankarlal  Aggarwal’s  case (supra) this  Court while  construing   the provisions of s. 202 of the Indian Companies Act observed as follows:-           "There was no doubt either that most of the orders      or decisions  in winding  up would  not be comprehended      within the  class of  appealable orders specified in s.      104 or  O. 43  r.1. If  therefore the contention of the      respondent were accepted it would mean that in the case      of orders  passed by  the District Courts appeals would      lie only  against what  would be decrees under the Code      as well  as appealable  orders under  s. 104  and o. 43      r.1. and very few of the orders passed in the Courts of      the winding  up would  fall within these categories. On      the other  hand, the  expression "judgment" used in cl.      15 is  wider. The  learned Judge  therefore rejected  a      construction which  would  have  meant  that  the  same      orders passed  by District Courts and by a Single Judge      of a  High Court would be subject to different rules as      to appealability".       There  is yet another aspect of the matter which shows that s.  104 merely  provides an  additional or supplemental remedy by way 212 of appeal  and, therefore,  widens rather  than  limits  the original jurisdiction  of the  High Court.  For instance, in this very  case with  which this Court was dealing, an order passed under s. 202 of the Companies Act was appealable to a larger Bench  and yet  it was argued that the order being of an  interlocutory   nature  would  not  be  a  judgment  and therefore no  appeal would  lie to  the Division Bench. This contention was  negatived by  the Supreme  Court and  it was held that  against the  order passed  by a Trial Judge under the Companies  Act, an  appeal would  lie  to  the  Division Bench. On a parity of reasoning, therefore, s. 104 read with order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of order 43 Rule  1, to  a larger  Bench of the High Court without at all disturbing,  interfering with  or overriding the Letters Patent jurisdiction.  There are  a number of other Acts also which confer  additional powers  of appeal to a larger Bench

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within the  High Court  against the  order of a Trial Judge. Take, for  instance,  a  case  under  the  Arbitration  Act. Suppose in  a suit the matter is referred to arbitration and after  the   award  is   filed  by  the  Arbitrator  certain objections are  taken, under s. 39 of the Arbitration Act an appeal would  lie to  a Larger  Bench from  the order  of  a Single Judge  disposing  of  the  objections  taken  by  the parties against the award. Section 39 runs thus:      "39. Appealable  orders.-(1) An  Appeal shall  lie from the following  orders passed  under this  Act (and  from  no others) to  the Court authorised by law to hear appeals from original decree of the Court passing the orders; An Order-      (i)  superseding an arbitration;      (ii) on an award stated in the form of a special case;      (iii)Modifying or correcting an award;      (iv)  filing   or  refusing   to  file  an  arbitration           agreement;      (v)  staying or  refusing  to  stay  legal  proceedings           where there is an arbitration agreement;       (vi)setting aside or refusing to set aside an award:                Provided that  the provisions of this section           shall not  apply to  any order  passed by  a small           Cause Court. 213      (2)  No second appeal shall lie from an order passed in           appeal under  this section,  but nothing  in  this           section shall  affect or  take away  any right  to           appeal to the Supreme Court".      It cannot  be contended  by any  show of force that the Order passed  by the  Trial  Judge  being  an  interlocutory order, no appeal would lie to the Division Bench or that the provisions of  the Arbitration  Act giving a right of appeal to a  litigant from  the order  of  a  Trial  Judge  to  the Division Bench  in any way fetter or override the provisions of the Letters Patent.      There are,  however,  a  number  of  decisions  of  the various High  Courts which  have held that the provisions of order 43  Rule 1 clearly apply to a Trial Judge. As early as 1872, the  Bombay High  Court in Sonba’i’s case (supra) held that in  regard to appeals against orders of the Trial Judge the practice  of the  Bombay High Court has been that in all matters the  provisions  of  the  Code  concerned  would  be applicable.  In   this  connection,  Sargent,  Acting  C.J., speaking for the court observed as follows:-           "the word  "judgment" may  be taken to include any      preliminary or  interlocutory judgment,  decree, order,      or sentence within the meaning of clause 40, and effect      may be  given to section 37 by limiting the orders open      to appeal  to those orders which are expressly declared      appealable  in   the  various  sections  of  the  Civil      Procedure Code,  or in other words by incorporating the      provisions of  the Civil  Procedure  Code  relating  to      appeals with Sec. IS of the Letters Patent, and holding      the word  ’judgment’ to  mean all  judgments and orders      which are  appealable under the provisions of the Civil      Procedure Code". This case  was followed  by a  Division Bench  of the Madras High Court  which clearly held that an order passed under s. 592 was  controlled by  s. 588.  We have already pointed out that in  the Code prior to 1882, order 43 Rule 1 appeared in the shape  of s. 588 and even under order 43 Rule 1 an order rejecting an  appeal in forma pauperis is not appealable and does not  appear in  any of  the clauses of order 43 Rule 1. The Madras High Court in Rajgopal’s case (supra), relying on the decision of the Bombay High Court, observed thus:

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214           "An order passed under s. 592 of the Code of Civil      Procedure rejecting  an appeal in forma pauperis is not      appealable under  s. 588, which provides that no appeal      shall lie from orders not specified in that section.           It has already been decided in Achaya v. Ratnavelu      (ILR 9  Mad. 253)  that s.  15 of the Letters Patent is      controlled by  a similar section in the Civil Procedure      Code, which  provided that an order shall be final, and      that enactments  to such  effect  are  not  beyond  the      legislative powers of the Governor-General in Council".      Thus, even  in the  earlier times  the High  Court  had veered round  to the view that s. 588 would be applicable to the High Courts also even in respect of internal appeals in, the High Court.      Similarly, in  Ruldu Singh  v. Sanwal Singh, Shadi Lal, C.J. Speaking for the court observed thus;-           Now, section  588 of  the old  Code, which has now      been replaced  by section  104 and Order XLIII, rule of      the new  Code, enacted  that an  appeal  lay  from  the      orders specified  in that  section and  from  no  other      orders"; and  it was  consequently decided  by  a  Full      Bench of  that Court  in Muhammad  Naim-ul-Lah Khan  v.      Ihsan Ullah  Khan (1892) ILR 14 All. 226 that clause 10      of the  Letters Patent  was controlled in its operation      by section  588, and  that  no  appeal  lay  under  the      Letters Patent  from an order made under the Code if it      was not  one of  the orders enumerated in that section.      Section 104  of the  new Code, however, expressly saves      the right  of appeal otherwise provided by ’any law for      the time  being in  force’...It seems  to us  that  the      object of  the Legislature  in enacting sub-section (2)      was to  make it  clear that  there was no second appeal      under the Code from the orders specified in Sub-section      (1) of  section 104,  and that  sub-section (2) was not      intended to  override the  express  provisions  of  the      letters patent."      The Lahore  High Court  relied on  the decision  of the Privy Council  in Hurrish Chunder Chowdrys case (supra). The High Court further held that s. 104 does not in any way take away the 215 right of  appeal conferred  by the Letters but Patent of the High Court  merely bars  a second  appeal from orders passed under O.43 R. 1 to Division Bench. A contrary view was taken by the  Allahabad High  Court in Ram Sarup v. Kaniz Ummehani where the following observations were made:-           "It may,  however, be  conceded that  this  saving      clause does  not occur  in sub-section  (2) of  section      104. But under the corresponding section 588 of the old      Code, where  the words  were "orders  passed in  appeal      under this  section shall be final", their Lordships of      the  Privy  Council  in  Hurrish  Chunder  Chowdhry  v.      Kalisunduti Debi  (1882) ILR  9 Cal.  482 observed that      section  588,  which  had  the  effect  of  restricting      certain appeals,  did not  apply to  a case  where  the      appeal is  from one  of the Judges of the High Court to      the Full  Court to the full Court.. In any case section      104 (2)  does not  contain any  express provision which      would suggest that the provisions of the Letters Patent      have been  abrogated. We  accordingly hold  that  under      clause 10 of the Letters Patent an appeal lies from the      order of a single Judge passed in appeal."       With due deference to the Hon’ble Judges we are of the opinion that  the decision  of the  Allahabad High  Court on

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this point  is based on a serious misconception of the legal position. It  is true that s. 104 was introduced by the Code of 1908  and the  aforesaid  section,  as  we  have  already indicated, clearly  saved the Letters Patent jurisdiction of the High  Court. From this, however, it does not necessarily follow that  the restriction that there is no further appeal from the  order of  a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once s. 104 applies and  there is  nothing  in  the  Letters  Patent  to restrict the  application of  s. 104 to the effect that even if one  appeal lies  to the  Single Judge, no further appeal will lie  to the  Division Bench.  Secondly,  a  perusal  of clause 15  of the  Letters Patent  of  the  Presidency  High Courts and identical clauses in other High Courts, discloses that there  is nothing  to show that the Letters Patent ever contemplated  that  even  after  one  appeal  lay  from  the subordinate court to the Single Judge, a second appeal would again lie  to a  Division Bench  of the  Court. All that the Letters Patent  provides for  is that  where the Trial Judge passes an  order, an appeal against the judgment of the said Trial Judge would 216 lie to  a Division  Bench. Furthermore,  there is an express provision in  the Letters  Patent where  only in  one case a further or  a second  appeal could  lie to  a Division Bench from an  appellate order  of the  Trial Judge and that is in cases of  appeals decided  by a Single Judge under s. 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The  relevant portion  of cl.  15 of  the Letters Patent may be extracted thus:           "And we do further ordain that an appeal shall lie      to the said High Court of Judicature at Madras, Bombay,      Fort William in Bengal from the judgment.. Of one Judge      of the  said High  Court or  one Judge  of any Division      Court, pursuant  to section  108 of  the 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 section 108 of the Government of India Act, made (on      or after  the first  day  of  February,  1929)  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."      A perusal  of the  Letters Patent  would clearly reveal two essential incidents-(1) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High  Court, and (2) that where the Trial Judge decides an appeal  against  a  judgment  or  decree  passed  by  the district courts  in the mofussil, a further appeal shall lie only where  the judge  concerned declares it to be a fit one for appeal to a Division Bench. Thus, the special law, viz., the Letters  Patent, contemplates  only these  two kinds  of appeals and  no other.  There is,  therefore, no warrant for accepting the  argument of  the respondent  that if order 43 Rule 1 applies, then a further appeal would also lie against the appellate  order of the Trial Judge to a Division Bench. As this  is  neither  contemplated  nor  borne  out  by  the provisions of  the  Letters  Pantent  extracted  above,  the contention  of   the  respondent   on  this  score  must  be overruled.

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    A further  second appeal Lying to a Division Bench from an appellate  order of the Trial Judge passed under order 43 Rule 1  is wholly  foreign to  the scope  and spirit  of the Letters Patent. Un- 217 fortunately however, the Allahabad High Court in Ram Sarup’s case (supra)  refused to follow a Division Bench decision in Piari Lal  v. Madan  Lal and  also tried to explain away the Full Bench decision in Ram Sarup’s case (supra) where it was clearly pointed  out that  in such  cases no  further appeal would lie  to the  Division Bench  under the Letters Patent. The distinction  drawn by the Allahabad High Court regarding the application  of s.  104 is  a  distinction  without  any difference. Sir  John Edge,  C.J., in  Muhammad  Naim-ul-lah Khan’s case  (supra) dealing  with this aspect of the matter observed thus:-           "It appears to me that the Code of Civil Procedure      (Act No.  XIV of  1882), as  did Act  No.  X  of  1877,      contemplates  a   High  Court   in  two   aspects.   It      contemplates a  High Court doing the ordinary work of a      Court of  original and  appellate jurisdiction;  having      the necessary  powers of review and revision in certain      cases and  certain other  powers such  as are generally      found vested  in the  Courts of  the importance of High      Courts...whatever those  powers may  be,  it  is  quite      clear to  my mind  that the  power conferred  on a High      Court under  Chapter XLV of the Code of Civil Procedure      are special  powers  and  entirely  distinct  from  the      ordinary powers  required by  the  High  Court  in  the      carrying on of its ordinary judicial business." and Mahmood, J. Observed thus:           "To hold  then that  where this  statute of  ours,      namely, our present Code of Civil Procedure, declares a      decree or  order non-appealable,  such decree  or order      can be  made the  subject of consideration by the whole      of this Court under the Letters Patent, is to hold that      wherever no  appeal lies  to this Court the ceremony of      presenting it  to this  Court to a Single Judge of this      Court who would undoubtedly reject the appeal, makes it      the subject of consideration by a Bench of the Court."           The other Judges agreed with the view taken by the      Chief Justice  and Mahmood,  J.  In  Piari  Lal’s  case      (supra) which  was decided  after s. 104 was introduced      in the  Code of  1908, the  following observations were      made:- 218           "A preliminary  objection has  been taken  to  the      hearing of  the appeal based on the Full Bench decision      in the  case of  Muhammad Naimullah Khan v. Ihsan-ullah      Khan (1892) ILR 14 All. 226. Section 104 of the Code of      Civil Procedure  provides for  the cases  in  which  an      appeal  shall  lie  against  an  "order’.  Clause  (ii)      provides that  "No appeal  shall  lie  from  any  order      passed in appeal under this section". The contention of      the respondent  in the preliminary objection is that no      second appeal  lies and  reliance is  placed  upon  the      authority quoted  to show  that even  a Letters  Patent      appeal is  not permissible.  We are  of course bound by      the Full  Bench ruling  of this Court. It is contended,      however, that  the words  in section 588 of the Code of      Civil Procedure,  which was  in force when the decision      in the  Full Bench  case was  given, differed  from the      words of  the present Code. The only difference is that      in the  old Code  the words  were "The  order passed in      appeals under  this section shall be final", whereas in

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    the present  Code the  words are "No appeal shall lie".      We cannot  see how  the change  in the words can in any      way help  the appellant.  Possibly the  reason for  the      change is that under the words in the old Code it might      have been argued that even a "revision" or a "review of      judgment" would  not lie  against an order passed by an      appellate court.  We think  the  preliminary  objection      must prevail and we accordingly dismiss the appeal with      costs."      Thus, in these two cases it was clearly held that where a Trial  Judge had  passed an  order in an appeal against an order passed  by the district judge under order 43 Rule 1, a further  appeal   under   the   Letters   Patent   was   not maintainable. This  view is  fully supported  by the express language in  which clause  15 of the Letters Patent has been couched, as  referred to  above. Thus the latter decision of the Allahabad  High Court  in Ram  Sarup’s case  (supra) was clearly wrong  in holding  that an  appeal under the Letters Patent would  lie even  against an  appellate order  of  the Trial Judge  passed under  O.43, R.  1 even  though  it  was prohibited by s. 104 (2) of the Code.      Similarly, in  Chappan’s case  (supra) the  Court on an interpretation of  s. 588  (which  now  corresponds  to  the present Order  43 Rule  1 clearly  held that an appeal would lie to the High Court 219 against the orders contemplated in various clauses of s. 588 of the Code of 1877. The Court held thus:-           "The result of this judgment (so far as it applies      to the  question before  us) appears  to me  to come to      this, that  if the  order made  by a  single Judge only      amounts to an order such as is intended by chapter XLII      of the  Code, it  is not appealable unless it is within      section 588."      The Madras  case heavily  relied on the decision of the Privy Council  in Hurrish Chunder Chowdry’s case (supra). In Lea Badin  v. Upendra  Mohan  Roy  Chaudhury  &  Ors.  while criticising the  judgment of  Sir Richard Couch, C.J. in The Justice of  the Peace  for Calcutta  (supra) the Court as an alternative argument clearly held that order 43 Rule 1 would apply pro  tanto to  the Trial Judge and on this ground also the order  would be  appealable to a Division Bench. In this connection,  the   celebrated  jurist   Sir  Manmatha   Nath Mookerjee, J. Observed as follows:-           "But there  is another and a far simpler ground on      which it  must be held that an appeal is competent. The      order in  the present  case is one for which a right of      appeal is  provided in  cl. (s) of r. 1 of or 43 of the      Code. Under  the present Code (Act V of 1908) it cannot      be contended  that the Code and the Rules made under it      do not  apply to  an appeal from a learned Judge of the      High Court "      Another important  decision regarding the applicability of order 43 Rule 1 to an order passed by the Trial Judge was rendered by  a Full  Bench in Mathura Sundari Dassi v. Haran Chandra Shaha & Ors. where Sanderson, C.J. Observed thus:-           "By  the  terms  of  s.  117,  the  Code  is  made      applicable to  the High  Court, and O. 43, R. 1 gives a      right of  appeal in the very case under discussion. But      it is  said that  this Code and the rules made under it      do not  apply to  an appeal from a learned Judge of the      High Court.  I cannot  follow that argument. It is part      of the  defendant’s case  that O.9  R. 8  applies. That      order is  in effect a part of the Civil Procedure Code.      It seems to me strange that the plaintiff

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220      should be subjected to O. 9, R. 8 and be liable to have      his suit  dismissed for want of appearance, yet when he      has had  his suit  dismissed under  one of the rules of      the Code  and wants to call in aid another of the rules      which-when his  application for  reinstatement has been      refused-gives  him  a  right  of  appeal  against  that      refusal, he  is met  with the  argument that  he cannot      call in  aid that  rule because there is no appeal from      the learned  Judge of  the High  Court under  the Civil      Procedure Code.  I think  this is  not a true view or a      reasonable construction  to put  upon the  Code and the      rules made  under it.  In my judgment, the Code and the      rules do  apply  and  the  plaintiff  has  a  right  of      appeal." and Woodroffo ’J’ made similar observations:-           "Whether or  not as  a question of jurisdiction an      appeal lies  under clause 15 of the Letters Patent in a      case in  which an  appeal is  allowed under the Code, I      think it may be said that there are prima facie grounds      for holding  that an appeal should be held to lie under      the Letters  Patent where it is allowed under the Code;      for the  fact that  the Legislature  has  in  the  Code      allowed an appeal in a particular case, a affords to my      mind prima  facie grounds for supposing that case is of      a class which this Court considers appealable under its      Letters Patent..  Looking at  the nature  of the  order      appealed from,  I  think  I  should  hold  that  it  is      appealable as a ’judgement’ under the Letters Patent." and Mookerjee, J. Observed thus:-           "The term  "Rule" which finds a place in s. 117 is      defined in  clause 18  of s.  2 of  the Code to mean "a      rule contained  it the  First Schedule or made under s.      122 or s. 125." our attention has not been drawn to any      such  rule   which  makes  O.  43,  R,  1,  clause  (c)      inapplicable. On  the other  hand, O.  49, R.  3  which      excludes the operation of other rules, lends support to      the contention of the appellant that O. 43, R. 1 clause      (c) is applicable to the present appeal.           "S.  104   of  the  Code  of  1908  is  materially      different from  S. 588 of the Code of 1882. It provides      that lie from 221      the orders  mentioned  in  the  first  clause  of  that      section and,  save as  otherwise expressly  provided in      the body  of the  Code or by any law for the time being      in force from no other orders." The effect of s. 104 is      thus, not  to take  away a  right of  appeal  given  by      clause 15  of the Letters Patent, but to create a right      of appeal  in cases even where clause 15 of the Letters      Patent is not applicable.. I hold accordingly that this      appeal is  competent under  Clause (c),  R. 1, O. 43 of      the Civil Procedure Code.      I am  further of  opinion that  the appeal is competent also under Clause 15 of the Letters Patent."      (Emphasis ours)      We find  ourselves in  complete agreement with the view taken and  the reasons  given by the three eminent Judges in the aforesaid  case which furnishes a complete answer to the arguments of the respondents that order 43, Rule I will have no application  to internal  appeals in the High Court under the provisions of the Letters Patent.      A similar  view was  taken in  Lea Badin’s case (supra) where the following observations regarding the applicability of order  43 Rule I in respect of an order passed by a Trial

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Judge were made:-           "As an  order  refusing  an  application  for  the      appointment of  a receiver  based on  provision in  the      indenture of hypothecation, that on a breach of any one      of the  covenants  contained  therein  the  plaintiff’s      assignor  would   be  entitled   to  have   a  receiver      appointed, the  order has  determined a  right which is      one of the matters in the controversy itself, and so it      satisfies the  definition of  Couch, C.J., as well. The      order appealed  from in this case is, in our opinion, a      judgment’ within the meaning of Cl. IS, Letters Patent.      We may  add that  there are  decisions of this Court in      which orders  discharging or  refusing to  discharge  a      receiver appointed  in a  suit, after the suit had come      to an  end or  had become infectious, have been held to      be  ’  judgments’  and  so  appealable...But  there  is      another and  a far  simpler ground  on which it must be      held that  an appeal  is competent.  The order  in  the      present case  is one  for which  a right  of appeal  is      provided in cl. (s), R. 1, 222      O. 43  of the  Code. Under  the present  Code (Act S of      1908) it  cannot be  contended that  the Code  and  the      Rules made  under it  do not  apply to an appeal from a      learned Judge  of the High Court, such a contention was      elaborately dealt  with and  repelled in  the  case  of      Malhura Sundari  Dassi v.  Haran Chandra  Shaha &  Ors.      (AIR 1916 Ca. 361)".           (Emphasis ours)      In Toolsee  Money Dassee & Ors. v. Sudevi Dassee & ors. (supra) Maclean,  C.J. while  relying on the decision of the Judicial Committee  in Hurrish  Chunder Chowdry’s  case made the following pithy observations:           "To my  mind the  first of  these points  has been      authoritatively decided against the view of the present      respondents by  the Judicial  Committee  of  the  Privy      Council in the case of Hurrish Chunder Chowdhry v. Kali      Sunderi Debi  (10 I.  A. 4). I need not travel into the      facts of  that case,  but there their Lordships said at      page 494  of the  report in the Indian Law Reports: "It      only remains  to observe  that their  Lordships do  not      think that  section 588 of Act X of 1877, which has the      effect of  restricting certain appeals, applies to such      a case  as this  where the  appeal is  from one  of the      Judges of  the Court  to the  Full Court."  It is clear      from the  report that the point was elaborately argued,      and the  clear expression  of their  Lordships’ opinion      must be read in connection with that argument." and Prinsep,  J. who agreed with the Chief Justice, made the following identical observations:-           "We have  it, therefore,  that if beyond clause 15      of the Letters Patent, 1865, section 588 of the Code of      Civil Procedure  gives the  right of appeal against any      order of the description specified therein, there is no      Court of  Appeal constituted  to hear it, if such order      not being  a judgment had been made by the Judge on the      original Side of the High Court.      ...                    ...                ...           I understand  this to  mean that  section 588 does      not affect  any matter  coming within  clause 15 of the      Letters 223      Patent, and  if I  may venture  to say  so, the reasons      which led  to the  expression of that opinion and which      have not  been given  in the  judgment reported  may be

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    those stated by me for arriving at the same conclusion.           I have no doubt that we are bound to follow to the      fullest extent the opinion expressed by their Lordships      of the  Privy Council that section 588 of the Code does      not apply  to the  case now  before us,  and that  this      matter has thus become settled law". And Ammer Ali, J. while dissenting from the applicability of s. 588  held that  the order  appealable under  s. 588 was a judgment within  the meaning  of  the  Letters  Patent.  Two decisions of  the Rangoon  High Court also have consistently taken the view that the provisions of s. 104 read with order 43 Rule  I apply  to the  Trial Judge. In P. Abdul Gaffor v. The Official  Assignee (1)  the following  observations were made:           For an  order made  in exercise  of  the  ordinary      original civil  jurisdiction to  be appealable, it must      come either  under order XLIII, Rule 1 or be a judgment      within the meaning of Section 13 of the Letters Patent,      so  that  for  the  purpose  of  this  application  the      appellant must  establish that  it is a judgment within      the meaning of section 13".           (Emphasis ours)      The question of the applicability of order 43 Rule I to an appeal  from the Trial Judge under the Letters Patent was raised and  decided by  the Jammu  & Kashmir  High Court  in Abdul Samad  & Ors.  v. The State of J & K (2) a decision to which one  of us  (Fazal Ali,  C.J. as  he then  was) was  a party. After  an exhaustive  review of  various decisions on the subject, the High Court observed as follows:- G           The legal  position that  emerges,  therefore,  is      that orders  of the  character specified in Section 104      and order  43, Rule I, Civil P.C. excepting clause (JJ)      thereof, would 224      be construed as judgments and an appeal against any one      of such orders would lie to the.. Division Bench of the      High Court  notwithstanding the  fact that it is passed      by one  of the  judges of the High Court sitting on the      original side".      It may  be mentioned  that  like  the  Presidency  High Courts, the  High Court  of Jammu  & Kashmir  had also  been invested with ordinary civil original jurisdiction.      The question of the applicability of order 43 Rule 1 to an appeal  against an order of a Trial Judge to the Division Bench was  directly in  point  and  fully  considered  by  a Division Bench  of the  Calcutta High Court and a Full Bench of the Rangoon High Court. In Kumar Gangadhar Bagla v. Kanti Chunder Mukerjee & Anr. while dwelling on this aspect of the matter it was observed as follows:           "Mr. Bose  did not  seek to argue, that the formal      order of  the  7th  of  June,  1935,  was  one  of  the      appealable orders  provided for  in the  Code of  Civil      Procedure. On  the contrary, he went so far as to aver-      with considerable vehemence - that neither sec. 104 nor      order XLIII,  r. l  of the Civil Procedure Code has any      application to  the High  Court. I would point out that      it is  clear from  sec. 117  of Code of Civil Procedure      and still  clearer from  Or. XLIX,  r. 3,  C.P.C., that      both sec. 104 and Or. XLIII, r. 1, do apply to the High      Court".           (Emphasis ours)      It is manifest from the observations made above that in view of  the clear  and explicit  provisions of  s. 117  and order 49  Rule 3 which while exempting other provisions from the jurisdiction  of the  High  Court  did  not  exempt  the

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various clauses of order 43 Rule 1.  An identical view seems to have  been taken  by Sir  Page,  C.J.  in  a  Full  Bench decision of  the Rangoon  High  Court  in  In  re:  Dayabhai Jiwandas &  Ors. (supra)  where the  Chief  Justice  pithily observed as follows :-           "In many  statutes in India, of course, a Right of      appeal from  an order passed pursuant to the statute is      expressly provided,  and in  such cases  an appeal will      lie on  the terms  and conditions therein prescribed. I      will  not   pause  to   enumerate  or   discuss   these      enactments, although 225      many such statutes were cited at the Bar. But, except A      where otherwise  a right of appeal adhoc is given under      some  statute  or  enactment  having  the  force  of  a      statute, the  right of  appeal from  orders that do not      amount to  "judgment" is regulated by the provisions of      the Code of Civil Procedure; (see section 104 and order      43, Rule 1)".      Thus, there  appears  to  be  a  general  consensus  of judicial opinions  on the  question of  the applicability of order 43 Rule 1 to Letters Patent appeals.      This now  brings us  to the second limb of the argument of Mr. Sorabjee that even assuming that order 43 Rule I does not apply to the High Court so far as the Trial Judge of the said court  is concerned,  there can  be no  doubt that  the orders indicated  in various  clauses of  order  43  Rule  1 possess the  attributes and incidents of a final order which conclusively decides  a particular issue so far as the Trial Court is  concerned. Thus,  there can be no difficulty, even without applying  order 43  Rule 1  to hold  by a process of analogical reasoning  that the  appeals and orders mentioned in the various sub-clauses would amount to a judgment within the meaning  of cl.  15 of  the Letters  Patent because they contain   the    traits,   trappings   and   qualities   and characteristics of  a  final  order.  In  other  words,  the argument  advanced   was  that  we  could  still  apply  the provisions of  order 43 Rule 1 by the process of analogy. We fully agree  with this  argument because it is manifest that the word  ’judgment’ has  hot been  defined in  the  Letters Patent but  whatever tests  may be applied, the order passed by the Trial Judge appealed against must have the traits and trappings of  finality and  there can  be no  doubt that the appealable orders  indicated in  various clauses of order 43 Rule I are matters of moment deciding valuable rights of the parties and  in the  nature of  final orders  so as  to fall ‘within the definition of ’judgment’.      This Court  in Radhey  Shyam v.  Shyam Behari Singh (1) clearly held  that an  application under order 21 rule 90 to set aside  the auction-sale  is a judgment as the proceeding raises a  controversy between  the parties  regarding  their valuable rights.  In this  connection, this  Court  observed thus :-           "In our  view an  order in  a proceeding  under o.      XXI, r.  90 is  a "judgment"  inasmuch as  a proceeding      raises 226 a controversy  between the  parties therein  affecting their valuable rights  and  the  order  allowing  the  application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale".      On a  parity of reasoning, an order refusing to appoint a  receiver  or  grant  an  injunction  and  similar  orders mentioned in various clauses of order 43, Rule 1 fall within the tests laid down by this Court in the aforesaid case.

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    We are  aware that  there are some decisions which have taken a contrary view by holding that s. 104 read with order 43 Rule  I does not apply to a Trial Judge under the Letters Patent. These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of ss.  104 and  117 and  order 49  Rule 3  but seem to have proceeded on  the basis  that the  Letters  Patent  being  a special law  or a  special jurisdiction, the same over-rides s. 104  which in  terms does  not apply  where a special law makes certain special provisions.      We now proceed to discuss these cases briefly. In Pandy Walad Dagadu  Mahar &  Anr. v. Jammadas Chotumal Marwadi (1) the identical  point which is at issue in the instant appeal was not involved and the finding given by the High Court was merely incidental.  The Division  Bench seems to have relied on a  judgment of Sir Basil Scott and Hayward, JJ. where the question was  only incidentally  dealt with.  Martin, J.  In Pandy’s case observed thus :-           "Shortly  stated,   therefore,  this   Full  Bench      decision amounts  to  this,.  that  appeals  under  the      Letters Patent  are governed by the Letters Patent, and      appeals under  Code are  governed by the Code. Further,      the Code  only deals  with appeals  from certain Courts      and it does not deal with appeals within the High Court      from the decision of one Judge of the Court to another.           That is  in my  opinion,  the  true  view  of  the      relative position of the Letters Patent and the Code".      With due  respect, a  close analysis  of this  decision would reveal  that the  Judges followed a fallacious process of reasoning,  According to their opinion, the appeals under the Code of Civil 227 Procedure and those under the Letters Patent were, so to say two separate  compartments having different spheres of their own. With due deference, we might point out that such a view is based on a total misinterpretation and misconstruction of the true  nature and  object of  the Code of Civil Procedure and the  Letters Patent.  In fact,  as we  have pointed  out earlier, there  is no  inconsistency, whatsoever between the Letters Patent  and s.  104 read  with order  43 Rule l; The first premise of the Court that internal appeals in the High Court were  governed by  the Letters Patent alone and not by the Code  appears to  be legally fallacious. We have already pointed out  that a large number of decisions, including the Privy Council, have clearly taken the view that although the Letters Patent  is a  special law  certain provisions of the Code of  Civil Procedure in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench or  to quote  the Bombay Judges to ’internal appeals’. Secondly, the  Court completely  overlooked the legal effect of s.  117 and  order 49  Rule 3 which completely demolishes the presumptuous  process of  logic adopted  by  the  court. Thirdly, the  Court appears to have overlooked that far from excluding the  Code there  could be other special Acts which could  and   did  confer  additional  jurisdiction  even  in internal appeals  to the  High Court,  viz., from  an  order passed by  a Trial Judge to a larger Bench, for instance, s. 39 of  the Arbitration Act or s. 202 of the Indian Companies Act and  other similar  local  or  special  Acts.  If  these special Acts could without affecting the jurisdiction of the Letters  Patent   or  overriding   the   same   provided   a supplementary  or  additional  jurisdiction,  there  was  no reason why the Code of Civil Procedure also could not do the same particularly  when the  Trial Judge  had to  adopt  the procedure  contained   in  the   Code,  starting   from  the

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presentation of  the plaint  to the  delivery  of  judgment. Fourthly,  the   Division  Bench   does  not  seem  to  have considered the  fact that  what the  Letters Patent  did was merely to  confer original  civil jurisdiction  on the  High Court  to   be  exercised  by  a  Single  Judge,  who  would undoubtedly be  a Trial  Judge, but of an elevated status so that only such suits could be filed in the Court of the said Judge as  are of a very high valuation which may differ from High Court  to High  Court. This  was done  in order that in heavy suits involving substantial questions of fact and law, the hearing of the suit by a senior Court of the status of a High Court  Judge would repose, endeanr and generate greater confidence in  the people.  Thus  if,  interlocutory  orders passed  by   District  courts   in  the  mofussil  could  be appealable to the High Court, there was no reason why inter 228 locutory orders  passed  by  a  Trial  Judge  could  not  be appealable to  a larger  Bench irrespective  of the question whether or not they were judgments within the meaning of cl. 15 of  the Letters  Patent. This  appears to  us to  be  the cardinal philosophy  of the  Code in applying the provisions of order 43 Rule I, to the original suit tried by the Single Judge (Trial Judge).      Furthermore, the  concept of  internal appeals  in  the High Court  seems to  be a legal fiction without any factual existence imported  by some  of the  High Courts in order to get rid  of some  of the  provisions of  the Code  of  Civil Procedure which  is totally  opposed not only to the aim and object of  the Code  but also  to the  very  spirit  of  the Letters Patent. In a later judgment of the Bombay High Court in Vaman  Ravji Kulkarni  v. Nagesh  Vishnu Joshi & Ors.,(1) the following observations were made:-           "I am,  with respect,  of opinion  that  the  view      taken by the full Bench of the Madras and Calcutta High      Courts in  the cases  referred to above is correct, and      that the  question must  be  regarded  as  having  been      finally settled by the decision of the Privy Council in      10 I.  A. 4.  (Hurrish Chunder  Chowdry v. Kali Sundari      Debi) S.  104. Civil P.C., which refers only to appeals      to the High Court from Courts subordinate to it, cannot      apply to  appeals filed  under Cl.  15 of  the  Letters      Patent from  a single  Judge OF  the High  Court  to  a      bench. (Wadia, J.)      ...             ...           ...            ...           There can  be no  doubt that the provisions of the      Letters Patent  have conferred special powers regarding      appeals within  the High  Court. Those  powers are  not      specifically taken  away by  s. 104, Civil P.C. and are      not, therefore,  affected by  it . ..Special enactments      are not  repealed by later general Acts unless there be      some express reference to the previous legislation or a      necessary  inconsistency   in  the  two  Acts  standing      together, which  prevents the maxim from being applied.      Sub-section (2)  of s.  104, Civil P.C., does not refer      to the  Letters Patent  and say that in spite of Cl. 15      of the  Letters Patent  no appeal  lies from  any order      passed in  an appeal under Sub-s. (1). Sub-s. (2) is in      no way 229      inconsistent with  cl. 15 of the Letters Patent and the      two can  stand together, the former applying to appeals      under the  Code, and  the  latter  to  special  appeals      within the  High Court...I  am satisfied  that s.  104,      Civil P.C  . does  not control  cl. 15  of the  Letters      Patent, and  in spite of the absence of a saving clause

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    in sub-s. (2) of s. 104 does not affect or cut down the      right of appeal conferred by the Letters Patent."      (Lokur, J.)      As regards the first part of the observations of Wadia, J, we  are constrained to observe that the learned Judge has not correctly  construed the  true ratio  of the decision of the Privy  Council in Hurrish Chunder Chowdry’s case (supra) where, as  indicated, the Privy Council has in express terms held that  s. 588 (which now corresponds to order 43 Rule 1) clearly applies  to appeals  against orders of a Trial Judge to  a  larger  Bench  of  the  High  Court.  Similarly,  the observations  made  by  Lokur,  J.  run  against  the  plain interpretation of  s.  104  by  assuming  that  there  is  a conflict between  s. 104  read with  order 43 Rule I and the Letters Patent  when in  fact, as  pointed out,  there is no such conflict  at all-all  that s.  104 does  is to  give an additional jurisdiction  apart from the Letters Patent which is in  no way  unconstitutional with  the Letters Patent. We may like  to observe  here that  there  is  no  non-obstante clause in  the provisions  of the Letters Patent to indicate that  the   provisions  of  the  Code  of  Civil  Procedure, particularly s.  104 would  not apply either expressly or by necessary intendment. In this view of the matter, therefore, we are  clearly of the opinion that the Bombay decisions are wrongly decided and must, therefore, be overruled.      In Vishnu  Pratap and  Ors. v.  Smt.  Revati  Devi  and Ors.(l) the  Court held  that no  appeal  against  an  order passed by  a Trial  Judge under  s. 202 of the Companies Act would lie to a Division Bench in view of the Letters Patent. This argument  was negatived  and  overruled  in  Shankarlal Aggarwal’s case  (supra)  as  already  discussed  above.  As regards  the   applicability  of  order  43,  the  following observations were made in Vishnu Pratap’s case:           "It is  true that orders 40 & 43 both apply to the      High Court but the question here is whether o. 43 makes      provision for an appeal from one court to another or it      is intended  to cover cases of an appeal from one Judge      to a bench of 230      the same  Court..  While  s.  96  deals  with  original      decree, s.  104 Civil P.C. deals with orders, not being      decrees, and the orders that are appealable are set out      under o.  43, C.P.C. The question of an appeal from one      Court to  another Court  is no  doubt governed  by  the      provisions of  the Code  of  Civil  Procedure  but  the      provision for  appeal from  one Judge  of a  Court to a      bench of the same Court is not provided for by the Code      and must be governed by the Letters Patent.           If s.  104 read  with O. 43 makes all these orders      appealable then  what  would  be  the  Court  to  which      appeals would  lie from  an order  passed by a Division      Bench and  not by  a single Judge. We are not satisfied      that s. 104 or O. 43 ever intended to deal with appeals      from a  Judge or Judges of one Court to a larger number      of Judges  in the  same Court.  It is no doubt true, as      has been  held  by  their  Lordships  of  the  Judicial      Committee. in-’Mt. Sabitri Thakurain v. Savi’ (AIR 1921      PC 80)  that s.  104 as  well as  o. 43  apply to  High      Courts but it does not mean that they give any right to      an appeal  from an  order by  a Judge or Judges of that      Court to  a larger  number of  Judges of the same Court      independently of the Letters Patent of the Court. As we      have said  if o.  43 or  s. 104,  Civil P.C., were made      applicable per  se, without  reference to  the  Letters      Patent, then even an order passed by a bench would come

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    under those  provisions, but  before an  appeal can  be      filed there  will have  to be  a Court  constituted for      hearing an appeal and the only provision for hearing an      appeal, from the judgment of a single Judge, by a bench      of two or more Judges of the same Court is contained in      the Letters  Patent of  the Chartered  High Courts.  An      order, to  come under  the Letters  Patent  must  be  a      judgment, and,  if an order is not a judgment, then cl.      10 of  the Letters  Patent would not apply and there is      no provision  for constituting a bench of more than one      Judge to  hear such  an appeal.  We, therefore, fail to      understand how  O. 43  R. 1,  or  s.  104,  Civil  P.C.      without any reference to cl. 10  of the Letters Patent,      can help the appellants.’      In this case also, the line of reasoning adopted by the court is  the same as that of the Bombay High Court referred to above. 231 One of  the reasons  given is  that  while  order  43  makes provision for  A appeal from one court to another, it is not intended to  apply to  an appeal  from one Judge of the High Court to  a bench  of the  same Court.  No reasons have been given  by  the  Judges  for  holding  why  this  is  not  so particularly in  the face  of the clear provisions of s. 117 and order  49 Rule  3, as  discussed above.  Thus, the first part of  R the  reasoning  of  the  High  Court  is  totally irrelevant and  wholly unintelligible. The point at issue is if s.  104 read  with order  43, Rule  I applies to an order passed by  District Courts in the mofussil, why could it not apply to  the one passed by the Trial Judge when the Letters Patent does not in any way bar such an appeal.      Another ground  taken by  the Court is that if order 43 Rule I  is made  applicable to the High Court then a strange anomaly will  arise in  that where  an appeal  lies  to  the Division Bench, how could a further appeal lie to some other bench of  the court.  This  argument  also  is  based  on  a misconception of  order 43  Rule 1.  It is  manifest that if order 43  Rule I were to apply to orders passed by the Trial Judge, the  order would  be one  passed by only one Judge of the High  Court  and,  therefore,  in  the  context  of  the original jurisdiction  exercised by  a Single  Judge of  the High Court,  the appellate  jurisdiction would  lie with the Division Bench as contemplated by the Letters Patent and the Rules framed  by the  High Court.  We are  unable to see any anomaly or  inconsistency in  this  position.  Thirdly,  the court seems  to have  relied on  a  decision  of  the  Privy Council in  Mt. Sabitri  Thakurain v.  Savi (AIR 1921 PC 80) and has  interpreted the  ratio of this case to mean that s. 104 would not apply to High Courts which is exactly what the Privy Council does not say. With due respect, therefore, the learned Judges  have not  correctly appreciated the decision of the  Privy Council which has nowhere indicated that order 43 Rule  I would  not apply  to internal appeals in the High Court. On  the other  hand  their  Lordships  of  the  Privy Council had  held to  the contrary  as discussed  above. For these reasons,  therefore, we  are of  the opinion that this case has  also not  been correctly decided and we disapprove the reasons given and the decision taken in this case.      We might  also notice  a full  Bench  decision  of  the Nagpur High  Court  in  Madhukar  Trimbaklal  v.  Shri  Sati Godawari Upasani Maharaj 232 of Sakori & Ors. (1) where Niyogi, J. Observed as follows :-           "Clause 10,  Letters Patent  defines the appellate      jurisdiction of  the High  Court vis-a-vis the judgment

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    passed by  a single  Judge of  that Court. It should be      observed that  the Civil  Procedure Code  does not make      any provision  in this behalf. The right of appeal from      a decree  of a  single Judge  to the  High Court is not      governed by  s. 96 or s. 100 or s. 104, Civil P.C., but      by cl.  10,  Letters  Patent..  This  right  of  appeal      depends on  the special  provision made in the Charter.      S. 4,  Civil P.C.,  provides that  the  Code  does  not      affect any  special jurisdiction or power conferred, or      any special  form of  procedure prescribed  by or under      any other  law for  the time  being in force. Since the      special jurisdiction  or power is conferred on the High      Court by  cl. 10,  Letters Patent the provisions in the      Civil Procedure Code regarding appeals cannot come into      operation in regard to an appeal from a single Judge of      the High Court to the High Court".      With due  respect, we  are unable  to  agree  with  the opinion  expressed  by  Niyogi,  J.  who  has  made  a  bald statement that the Code of Civil Procedure does not make any provision in  regard to  an appeal from an order passed by a Trial Judge to a Division Bench and that the right of appeal from a  decree of  a Civil  Judge to  a High  Court  is  not governed by  s. 100  or s.  104 but by cl. 10 of the Letters Patent of  the Nagpur  High Court.  Here again,  the learned Judge seems  to have committed an error apparent on the face of the record. An examination of the language of sections 96 to 100  would clearly  show that the scope of these sections is quite  different from  that of s. 104. Sections 96 to 100 expressly deal with the forum of appeal provided by the Code against decrees or orders amounting to decrees passed by the District Court  in the  mofussil. Section  104 is couched in very general  terms and cannot be limited to appeals against orders passed  by the  courts contemplated in sections 96 to 100. Moreover,  s. 104  does not  deal with appeal against a decree at all but provides a forum for appeal against orders under order  43 Rule I which are mainly orders of a final or quasi-final nature  passed during  the pendency  of a  suit. Section 104,  therefore, has  a much  wider application,  as discussed above,  and neither  overrides the  Letters Patent nor is  it inconsistent  with the  same. For  these reasons, therefore, we  are unable  to accept  the line  of reasoning adopted by the aforesaid High Court in holding 233 that s.  104 does  not apply to internal appeals in the High Court and A we accordingly overrule this decision.      A some  what  identical  view  was  taken  by  a  later decision of  the Nagpur  High  Court  in  Ratanlal  Jankidas Agarwal  v.   Gajadhar  &   Ors.  (l)  Where  the  following observations were made -           "Firstly, O.  43 has  not been  made applicable to      appeals from  appellate decrees  by o. 43, R. 1, though      the rules  of o.  41 have been made applicable to them.      So s.  104 bars an appeal from the order. Moreover, the      Civil Procedure  Code makes  no provision for an appeal      within the  High Court,  that is  to say, from a single      Judge of  the High Court.. Power is given to a Division      Bench of  the High Court to hear appeals from decisions      of a  single ’’  Judge of the High Court only under cl.      10 of the Letters Patent".      For the  reasons which  we have already given above, we hold that the learned Judges have fallen into the same error which was  committed by  the earlier  Nagpur case. The first reasoning given  by Mangalmurti,  J. that  order 43  is  not applicable to  appeals  from  appellate  decrees  is  wholly irrelevant because  the question  is whether  under order 43

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Rule 1, an appeal could lie from a Trial Judge to a Division Bench of  the High  Court. Secondly,  the learned Judge says that s. 104 bars a second appeal from the order and that the Code of Civil Procedure makes no provision for appeal within the High  Court. Here  again, the  learned  Judge  is  wrong because we  have already  pointed out  that as  far back  as Hurrish Chunder  Chowdry’s case  (supra) it was clearly held by the Judicial Committee that s. 588 was applicable even to internal  appeals   in  the  High  Court.  On  a  parity  of reasoning,  therefore,   on  the  basis  of  which  we  have overruled the  decisions of  the other High Courts, taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose, JJ. in the aforesaid case and hold that this case is not correctly decided.      A later decision of the Allahabad High Court also seems to have taken the same view. In Standard Glass Beads Factory & Anr.  v. Shri  Dhar &  Ors. (2) the following observations were made :-           "Such an  order if  made by a subordinate court is      appealable under or. 43 R. 1, C.P.C.; it is, as we have      seen an  order from  which in  England an  appeal lies,      without 234      leave, to  the Court of Appeal. If the narrower view of      the meaning  of the  word ’judgment’ be correct such an      order when  made by  a Judge  of a  High Court in India      exercising   original   jurisdiction   would   not   be      appealable".      Here also with due deference to the Judges constituting the Full  Bench, we  are of  opinion that  they committed an error in  drawing inspiration  from the procedure prevailing in England  in the  court of  appeal. In the first place the hierarchy of  the Courts  in India under the Civil Procedure Code is  essentially  different  from  that  in  the  United Kingdom. Secondly,  there is  no provision  existing in  the English law  corresponding to  Order 43  Rule 1 of an appeal from a  Trial  Judge  to  a  Division  Bench  under  various circumstances. Lastly,  this case  does  not  seem  to  have considered a  large number  of decisions  referred to by us, clearly holding  that s.  104 read  with  order  43  Rule  I applies to  appeals under  the Letters  Patent in  the  High Court. For  these reasons, therefore, we hold that this case also was not correctly decided and must be overruled.      Another case  taking a contrary view is again a case of the Bombay  High Court which also makes a rather interesting reading. In  J.K Chemicals  Ltd. v. Kreba and Co. (1) Desai, J. speaking  for the court observed on this part of the case thus:           "The reply  to  the  said  argument  is  that  the      provisions of  s. 104  and O.  43, R.  I provide for an      appeal only  from the  subordinate Court  to the higher      Court and  not from one part of the Court to the other.      It has  been  held  that  the  provisions  relating  to      appeals contained in the Civil Procedure Code deal with      appeals from subordinate Courts to higher Courts and do      not deal with appeals from the decisions and decrees of      the High  Court in  the exercise  of  its  ordinary  or      extra-ordinary civil  jurisdiction except so far as the      appeal to  the Supreme  Court is concerned. The subject      of an appeal from the decision of a single Judge of the      High Court  to a  Division Bench of the same High Court      is dealt  with only  under the  Letters Patent and such      right is  not governed  by the  provisions of the Civil      Procedure Code  relating to appeals. This view has been      taken consistently by the High Courts in India and also

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    by the  Privy Council  (see  Hurrish  Chunder  v.  Kali      Sunderi Debi-(1883) ILR 9 Cal. 482 at p. 494)". 235      The  first   part  of   the  observations  follows  the reasonings of  the A two decisions of the Bombay High Court, discussed  above,   and  are  therefore  open  to  the  same criticism  which  we  have  levelled  against  the  previous decisions. Secondly,  the court  seems to think that all the High Courts  in India  have consistently taken the view that order 43  Rule 1  does not  apply to internal appeals in the High Courts.  This is  doubtless factually incorrect because we have  referred to  a large number of decisions which have taken a  contrary view.  The High  Court was, therefore, not quite correct in observing that the High Courts in India had taken a  consistent view  in regard to this matter. Thirdly, the High  Court seems to have relied heavily on the decision of the  Privy Council  in  Hurrish  Chunder  Chowdry’s  case (supra) and  on Chappan’s case (supra) in holding that order 43 did  not apply  to internal  appeals in  the High  Courts which were  governed by the Letters Patent alone. Here also, with due  respect, the High Court has gravely erred. We have pointed out  while dealing  with Hurrish  Chunder  Chowdry’s case (supra)  that the  Privy Council  had clearly laid down that s.  588 applied to the High Court and this position has been understood  in this  very sense  by  several  judgments discussed  above.   The  High   Court,  therefore,  has  not correctly appreciated  the real  ratio of  the Privy Council case, referred to above.      As regards  Chappan’s case  (supra), the  conclusion of the High  Court is  not borne  out by  the ratio of the Full Bench in  the said case. It would appear that the Full Bench in the aforesaid case was concerned with two questions:      (1)  Whether in  view of  s. 622 of the old Code (which           corresponds to  s. 115  of the  Code of  1908)  an           order passed  by a trial Judge could be revised by           a larger Bench, and      (2)  Whether the right of appeal given by cl. 15 of the           Letters Patent  against an order passed by a trial           Judge was  controlled and  limited by  ss. 588 and           591 of  the Code of 1877 (which now corresponds to           order 43 Rule 1).      In the  instant case  we are  not  concerned  with  the revisional power but only with what old section 588 was. Far from deciding  that s. 588 was not controlled by the Letters Patent, the  learned Judge decided to the contrary. To begin with, Benson, J. formulated 236 the questions referred to the Full Bench thus :-      (1)  Whether the  jurisdiction exercised  by  the  High           Court under  section 622, Civil Procedure Code, is           included    in     the    expression    "appellate           jurisdiction" as  used in  section 13  of the High           Court Act  (24 and  25 Vict.  Chap. 104    and  in           section 36 of the Letters Patent of 1866, and      (2)  Whether the right of appeal given by section 15 of           the Letters  Patent against  an order  passed by a           single Judge  of the  High Court is controlled and           limited by  sections 588  and 591, Civil Procedure           Code?      I am  of opinion  that both  of these questions must be      answered in the affirmative". and Shephard, Acting C.J. Observed as follows:           "Accordingly I  think it  must be assumed that the      judgment of  a single Judge acting under section 622 of      the Code  is open to appeal, unless the right of appeal

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    has been  taken away  by section  588 of  that Code. On      that  question   I  entirely  agree  with  Mr.  Justice      Subramania Ayyar.  The  question  is,  in  my  opinion,      concluded by  authority which it is beyond our province      to criticise". and Boddam, J. expressed the following opinion :-           "The result of this judgment (so far as it applies      to the  question before  us) appears  to me  to come to      this, that  if the  order made  by a  single Judge only      amounts to  an order  such as  is intended  by  chapter      XLIII of  the Code,  it is  not appealable unless it is      within section 588". and Moore, J. Observed as follows :-           "It is  clear, however,  that this  could not have      been done,  for the  provisions of sections 588 and 591      do, in  certain cases, most certainly apply to the High      Court. For  example, section  588, clause  1,  provides      that if a District Munsif passes an order under section      20 of  the Code,  an appeal lies to the District Judge,      but that  there is  no second appeal to the High Court,      while if a District Judge passes 237      such an  order an  appeal can  be preferred to the High      Court. Whatever  view be  taken of  section IS  of  the      Letters Patent it would have been impossible to include      section 588  among those  sections that do not apply to      the High Court".      Thus, the  ratio decidendi of the decision clearly goes to indicate that the Full Bench of the Madras High Court had held in  no uncertain  terms that s. 588 applied to the High Court and  orders mentioned  therein passed by a Trial Judge would be  appealable to  a larger  Bench.  This,  therefore, knocks the  bottom out  of the  decision of  the Bombay High Court when  Chappan’s case  (supra) in  no way supported the view taken  by them.  For the  reasons given  above, we hold that J.K  Chemicals’s case  (supra) was also wrongly decided and can no longer be treated as good law.      It is  rather unfortunate that despite clear, explicit, pointed and  pragmatic observations  of the Privy Council in Hurrish  Chunder   Chowdry’s  case   (supra)   and   further clarification by  the legislature  by introducing  s. 104 of the Code  of 1908,  some of  the High  Courts n seem to have stuck to the antiquated view that the provisions of order 43 Rule I  do not  apply to  internal appeals  within the  High Courts.      Thus after considering the arguments of counsel for the parties on  the  first  two  limbs  of  the  questions,  our conclusions are :-      (1)  That there is no inconsistency between s. 104 read           with order  43 Rule  I and  the appeals  under the           Letters Patent  and there  is nothing to show that           the  Letters   Patent  in   any  way  excludes  or           overrides the  application of  s.  104  read  with           order 43  Rule I  or to show that these provisions           would not  apply to  internal appeals  within  the           High Court.      (2)   That even  if it  be assumed that order 43 Rule I           does not  apply to  Letters  Patent  appeals,  the           principles governing  these provisions would apply           by process of analogy.      (3)   That having  regard to  the nature  of the orders           contemplated in  the various  clauses of  order 43           Rule 1,  there can  be no  doubt that these orders           purport to  decide valuable  rights of the parties           in ancillary  proceedings even  though the suit is

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         kept alive and 238           that these  orders do  possess the  attributes  or           character of finality so as to be judgments within           the meaning  of cl.  15 of  the Letters Patent and           hence. appealable to a larger Bench.      (4)   The concept  of the Letters Patent governing only           the internal  appeals in  the High  Courts and the           Code of  Civil Procedure  having no application to           such appeals  is based  on a serious misconception           of the legal position.      This now  brings us to the second important point which is involved  in this appeal. Despite our finding that s. 104 read with  order 43 Rule I applies to Letters Patent appeals and all  orders passed by a Trial Judge under clauses (a) to (w) would  be appealable  to the Division Bench, there would still be  a large  number of  orders passed by a Trial Judge which may  not be  covered by  order 43  Rule  l.  The  next question that  arises is  under  what  circumstances  orders passed by a Trial Judge not covered by order 43 Rule 1 would be appealable  to a  Division  Bench.  In  such  cases,  the import, definition  and the  meaning of  the word ’judgment’ appearing in  cl. 15  assumes a  real significance and a new complexion because  the term  ’judgment’  appearing  in  the Letters Patent does not exclude orders not falling under the various clauses  of  order  43  Rule  1.  Thus  the  serious question to  be decided  in this  case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word ’judgment’ used in cl. IS of the Letters  Patent. The  meaning of the word ’judgment’ has been the  subject matter  of conflicting  decisions  of  the various High Courts raging for almost a century and in spite of such  length of  time, unfortunately, no unanimity has so far been reached. As held by us earlier it is high time that we should now settle this controversy once for all as far as possible.      We now  proceed to deal with the main controversy as to what is  the true  scope, meaning  and purport  of the  word ’judgment’ used  in cl.  15 of  the Letters Patent. Numerous authorities on both sides were cited before us in the course of the  very able  arguments advanced  by counsels  for  the parties  and   it  appears  that  there  are  three  leading judgments which have spelt out certain tests to determine as to when an order passed by a Trial Judge can be said to be a ’judgment’ within  the meaning  of. cl  IS  of  the  Letters Patent. A  very narrow  view on  this point  was taken  by a Division Bench 239 Of the Calcutta High Court in the case of The Justice of the Peace for  Calcutta (supra)  where Sir  Couch,  C.J.  On  an interpretation of  cl. 15  of the  Letters  Patent  observed thus:           "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. It  may be  either final, or preliminary, or      interlocutory, the difference between them being that a      final judgment  determines the whole cause or suit, and      a preliminary or interlocutory judgment determines only      a part of it, leaving other matters to be determined."      An analysis  of the  observations of  the Chief Justice would reveal  that the following tests were laid down by him in order  to decide  whether or  not an  order passed by the Trial Judge would be a judgment:      (1)  a  decision   which  affects  the  merits  of  the

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         question between the parties;      (2)  by determining some right or liability;      (3)   the order  determining the right or liability may           be final,  preliminary or  interlocutory, but  the           determination must  be final  or one which decides           even a  part of  the controversy  finally  leaving           other matters to be decided later.      Thus, examining  the tests  laid down  by  Sir  Richard Couch, C.J,,  it seems  to us  that the  view taken  by  the learned Chief  Justice appears  to place  a very  strict and narrow interpretation  on the  word ’judgment’  under  which orders deciding  matters of  moment or valuable right of the parties without  finally deciding the suit may not amount to a  judgment  and  hence,  not  appealable.  In  giving  this interpretation the  learned Chief  Justice was guided by two considerations: (I)  that a liberal interpretation may allow vexed litigants  to carry  any discretionary  order  of  the Trial Court  in appeal,  and (2)  that it  would confer more extensive right  to appeal  against the Judge sitting on the original side  than the  right of  appeal given  to a  Trial Judge sitting  in the  mofussil. We  are doubtless impressed with the  argument of the Chief Justice and fully appreciate the force  of the  reasons given  by him  but we  feel  that despite those  considerations the law must be interpreted as it stands and a court is not 240 justified in  interpreting a  legal term  which amounts to a complete distortion  of the  word ’judgment’  so as  to deny appeals even  against  unjust  orders  to  litigants  having genuine grievances so as to make them scapegoats in the garb of protecting  vexatious appeals.  In  such  cases,  a  just balance must  he struck  so as  to advance the object of the statute and  give the  desired relief  to the  litigants, if possible.  Although   it  is  true  that  this  decision  is practically the  locus classicus so far as the Calcutta High court is  concerned and  has been  consistently followed  by later decisions at the same time it cannot be denied that in a number  of cases  the conscience  of  the  Judges  was  so shocked that they tried to whittle down or soften the rigours of  this decision  so much  so that  in one case the observations of the Chief Justice were not only not followed but were  described as  antiquated and  in other  cases  the Judges strongly  expressed them  selves that  the High court should give  up its fondness to stick to the principles laid down by  the learned  Chief Justice. It is not necessary for us to  burden this  judgment with  later  decisions  of  the Calcutta High  court in trying to comment on the correctness of the  principles laid  down by  sir Couch,  c J. but a few instances may be quite revealing.        In Chandi Charan Saha v. Jnanendra Nath Bhattacharjee and Ors.,(l)  Sir Asutosh  Mookerjee in his leading judgment modified the  strict rule  of interpretation  of  ’judgment’ laid down  by sir Couch, C.J. and pointed out that the words ’merits of the question between the parties by determining a right of liability’ were not to be confined or restricted to the controversy  in a  suit itself but could take within its fold any right involved in any application which puts an end to the suit or the proceeding. sir Mookerjee, J. has widened the scope  of the observations of sir Couch, c.J and adopted some of  the observations  of Sir  White, C.J.  in  Tuljaram Row’s case (supra) and in this connection observed thus:-           "It is  plain that  the expression  ’some right or      liability is not restricted to the right in controversy      in the  suit itself  on the other hand, if we adopt the      wider definition  formulated by  White C.J. in the case

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    of Tuljaram  Row v.  Alagappa Chettiar (ILR 35 Mad. 1),      the decision  is unquestionably  a judgment  within the      meaning of  the Letters  Patent. The  test is, not what      the form of the adjudication is, but what is its effect      in the suit or proceeding in which 241      it is made. If its effect, whatever its form may be and      whatever may  be the nature of the application on which      it is  made, 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, or if its effect, if it is not      complied with,  is  to  put  an  end  to  the  suit  or      proceeding, the  adjudication is a judgment: Mathura v.      Haran (1915 ILR 43 Cal. 857)."      In Lea Badin’s case (supra), the following observations were made:           "To remove  the incongruity  which appears  in the      decision of  this Court  and to  lay down some definite      rule by  which orders might be tested when it has to be      determined whether  or not  they are ’judgments’ within      the meaning  of the  clause, this  Court will  some day      have to  abandon its  fond adherence  to the antiquated      definition of  Couch, C.J.,  and boldly acknowledge its      allegiance to the tests laid down by White, C.J."           (Emphasis supplied)      After  making  these  observations  the  Court  further reiterated the position in the following words.           "In more  decisions than  one of  this Court  this      definition of  ’Judgment’ given by Couch, C.J. has been      described as  classical, and  yet in  a long  course of      decisions this  Court has repeatedly expressed the view      that the  definition is absolutely exhaustive. Treating      this definition  as not  of an inflexible character and      yet not  expressly purporting  to extend  it, the Court      has in  numerous  cases  emphasised  the  necessity  of      scrutinizing  the   nature  of  the  decision  in  each      particular case  in  order  to  find  out  whether  the      decision amounts  to a ’judgment’ within the meaning of      the Clause.      In Shorab  Merwanji  Modi  and  Anr.  v.  Mansata  Film Distributors and Anr., the following observations were made:           "On a  strict construction  of the  Calcutta test,      the  Tight   or  liability  must  mean  some  right  or      liability which is 242      a  subject-matter   of  controversy   in  the  suit  or      proceeding but  in its application to individual cases,      that strict  construction has  not been  adhered to and      was indeed  often departed  from by  Couch, J., himself      who was  the author  of the test. Orders concerning the      jurisdiction of  the Court  to  entertain  a  suit,  as      distinguished  from   matters  of  the  actual  dispute      between the  parties, were  held by  him to come within      the category of judgments."      In Mooammed  Felumeah v.  S. Mondal  & Ors.  the  Court pithily observed as follows:           "Now, so  far as this Court is concerned, there is      a considerable  body of  judicial opinion, which, while      holding that  Sir Richard  Couch’s above  definition is      classical and  of pre-eminent  practical importance and      usefulness, has  consistently refused  to regard it as,      in any  sense. exhaustive  or  inflexible.  Indeed,  in      essence and  truth, it  has been accepted merely as the      starting point  on a  broad open  field,  stretched  in      front of  it in all its vastness and immense magnitude,

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    and Judges  have always  endeavoured to  extend it  and      expand the different aspects of the term and to give it      a wide  and extended meaning, though, of course, within      certain limits."      The other  leading case  which  puts  even  a  narrower interpretation and  in our  opinion, a clearly wrong one, on the word  ’judgment’ is  the  Full  Bench  decision  of  the Rangoon High  Court In  Re Dayabhai  Jiwandas’s case (supra) where the following observations were made:           "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."       With  due respect to the learned Chief Justice and the Judges who  agreed with  him, we  are unable  to accept  the interpretation of  the word  judgment’ given  by  the  Chief Justice which  runs counter to the very spirit and object of the word  ’judgment’ appearing  in cl.  15  of  the  Letters Patent. The learned Chief Justice seems to 243 have fallen  into the  error of equating the word ’judgment’ with ’decree’  as used  in the Code of Civil Procedure when, as pointed out above, the words ’judgment’ and ’decree’ used in the  Code cannot  form a  safe  basis  to  determine  the definition of  the word  ’judgment’ in  the  Letters  Patent particularly when  the Letters  has deliberately dropped the word ’decree  from judgment.’  We are,  therefore, unable to hold that  the view taken by the Chief Justice, Sir Page, is correct and accordingly overrule the same.      The next  leading case  which lays  down the  test of a ’judgment’ and which seems to have found favour with most of the High Courts in India is the test laid down by Sir Arnold White, C.J. in Tuljaram Row’s case (supra) where the learned Chief Justice pointedly spelt out various tests and observed thus:-           "The test  seems to  me to be not what is the form      of the  adjudication but what is its effect in the suit      or proceeding  in which  it is  made.  If  its  effect,      whatever its  form may  be, and  whatever  may  be  the      nature of  the application  on which  it is made, 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, or  if its  effect, if  it is  not  complied      with, is  to put  an end  to the  suit or proceeding, I      think the adjudication is a judgment within the meaning      of the  clause. An adjudication on an application which      is nothing  more than  a step towards obtaining a final      adjudication in  the suit  is not,  in  my  opinion,  a      judgment within the meaning of the Letters Patent."           I  think,   too,  an   order  on   an  independent      proceeding  which   is  ancillary   to  the  suit  (not      instituted as  a step towards judgment, but with a view      to rendering  the judgment  effective  if  obtained)  -      e.g.,  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."      Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to  assess the  import  and  definition  of  the  word ’judgment’ as used in cl. IS of the Letters Patent :-      (1)  It is  not the form of adjudication which is to be           seen  but   its  actual  effect  on  the  suit  or           proceeding; 244      (2)  If, irrespective  of  the  form  of  the  suit  or

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         proceeding, the  order impugned puts an end to the           suit or  proceeding  it  doubtless  amounts  to  a           judgment;       (3)  Similarly,  the  effect  of  the  order,  if  not           complied with,  is to  terminate the  proceedings,           the said order would  amount to a judgment;      (4)  Any order  in an  independent proceeding  which is           ancillary to  the suit  (not being  a step towards           judgment) but  is designed  to render the judgment           effective can  also be  termed as  judgment within           the meaning of the Letters Patent.                So far as this test is concerned, the learned           Chief Justice  had in  mind orders  passed by  the           Trial  Judge   granting  or   refusing  ad-interim           injunction or  appointing or refusing to appoint a           receiver.      (5)  An order  may be  a judgment  even if  it does not           affect the  merits of  the suit  or proceedings or           does not  determine any  rights in question raised           in the suit or proceedings.      (6)  An adjudication  based on  a refusal  to  exercise           discretion the  effect of  which is  to dispose of           the suit,  so far  as that particular adjudication           is concerned, would certainly amount to a judgment           within the meaning of the Letters Patent.      Similarly, Krishnaswami Ayyar, J., who agreed with tile Chief Justice  in the  above case,  pointed out that even an interlocutory judgment  which determines some preliminary or subordinate point  or plea  or  settles  some  step  without adjudicating the ultimate right of the parties may amount to a  judgment.   With  due   respect  we  think  that  if  the observations of  Krishnaswamy Ayyar,  J. are  carried to its logical limit  every interlocutory  order would  have to  be held to be appealable.      So far  as the  tests laid  down by White, C.J., and as analysed by  us, are  concerned we  are  inclined  to  agree generally with  these tests  though we feel that some of the tests laid down are far too 245 wide and  may not  be quite correct. While the view taken by Sir Richard  Couch, C.J.  in The  Justice of  the Peace  for Calcutta (supra)  is much  too strict,  the one taken by Sir White, C.J.  is much too wide. The correct test seems to lie somewhere in  between the  tests laid  down by the aforesaid jurists.      We might  point out  that the  tests laid  down by  the Calcutta High  Court have  been consistently followed by the Bombay High  Court and also by a large majority of the later decisions of the Calcutta High Court in Lea Badin v. Upendra Roy Chaudhury,  Kumar Gangadhar  v. Kanti Chunder Mukherjee, Shorab Merwanji  Modi v. Mansata Film Distributors, Mohammed Felumeah v.  S. Mondal.(supra)  Some of  the decisions  have sounded a  discordant note  and have  gone to  the extent of characterising  the   view  of  Sir  Couch,  C.J,  as  being antiquated and  have strongly  expressed the  view that  the Calcutta High  Court should  give up  its fondness  for  the strict test  laid down  by Sir  Couch in  The Justice of the Peace for Calcutta’s case. On the other hand, the tests laid down by  Sir White,  C.J. in  Tuljaram Row’s  case have been followed by  the Lahore  High Court in Ruldu Singh v. Sanwal Singh and  by some other High Courts in Standard Glass Beads Factory Shri  Dhar &  Ors. and later decisions of the Madras High Court  as also  by Andhra  Pradesh High  Court in Kuppa Viswappathi v. Kuppa Venkata Krishua Sastry.      A Full  Bench of  the Allahabad High Court, however, in

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Mt. Shahzadi  Begam v.  Alak Nath  dissented from  the  view taken by  the Madras High Court and held that the tests laid down by  that High  Court in  the aforesaid case were rather too wide.  In this  connection, Sulaiman, C.J., speaking for the Court observed as follows :-           "We would  like to  point out  that the  test laid      down by  the learned  Chief Justice  of the Madras High      Court is  put in  too wide  a language  and  cannot  be      accepted as laying down the correct criterion".      Similarly, in a later Full Bench decision of the Nagpur High Court in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot, Hidayatullah. J.  (as he  then was)  who wrote  the  leading judgment, very  pithily described  the essential  requisites and the exact meaning 246 of the  word ’judgment’  as used  in the  Letters Patent and observed thus:           "A judgment  means a decision in an action whether      final,  preliminary   or  interlocutory  which  decides      either wholly  or partially, but conclusively in so far      as the Court is concerned, the controversy which is the      subject of  the action.  It does not include a decision      which is  on a  matter of  procedure, nor  one which is      ancillary to  the action  even  though  it  may  either      imperil the  ultimate  decision  or  tend  to  make  it      effective.  The   decision  need   not  be  immediately      executable ’per  se’ but  if left untouched must result      inevitably   without   anything   further,   save   the      determination of  consequential details, in a decree or      decretal orders,  that is to say, an executive document      directing something  to be  done or  not to  be done in      relation to  the facts of the controversy. The decision      may itself  order that  thing to  be done  or not to be      done  or   it  may  leave  that  over  till  after  the      ascertainment of  some  details  but  it  must  not  be      interlocutory having  for its purpose the ascertainment      of some  matters or  details prior to the determination      of the whole or any part of the controversy".      The pointed  observations of  the Hon’ble  Judge try to synthesize the  conflicting views  taken by the Calcutta and the Madras  High Courts  and, in our opinion, they represent the true  scope and import of the word ’judgment’ as used in the Letters  Patent. The  learned Judge  while making  these observations has  made an  exhaustive analysis  of  a  large number of cases.       Having  dealt with  the main cases of the various High Courts reflecting  different and  variant views,  we do  not think it  necessary to  multiply authorities on this subject which have  been fully  debated in  the  decisions  we  have referred to.  We shall now proceed to refer to the decisions of this  Court with  respect to  the incidental observations made by  them regarding  the scope  and meaning  of the word ’judgment’ before giving our own view of the matter. Before, however, dealing  with the  cases of  this  Court  we  might indicate that in view of the decisions taken by us regarding the applicability  of s.  104 read with order 43 Rule 1 even to internal  appeals in  the  High  Court,  the  controversy regarding the  meaning  of  the  word  ’judgment’  has  been largely narrowed  down and sufficiently abridged because the orders mentioned  in clauses  (a) to  (w) of order 43 Rule 1 having 247 been held  to be appealable, there would be only a few cases left in A which the question as to whether or not the orders passed by  the Trial  Judge are judgments would arise. After

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discussing the decisions of this Court, we shall give a list of illustrative  cases which  may  justly  be  described  as ’judgment’ within the meaning of the Letters Patent so as to cover almost  the entire  field though a few cases still may have to be determined according to the principles laid down.      The first  decision of  this Court which is relevant is Asrumati Debi’s case (supra). In this case the only question involved was  whether an order transferring a suit under cl. 13 of  the Letters  Patent satisfied the tests of a judgment as mentioned  in cl.  15 of  the Letters  Patent. This Court referring to  the Calcutta  and Madras  decisions  refrained from giving  any particular  decision except  that they held that the  mere order of transfer under cl. 13 of the Letters Patent could  not be said to be a judgment and was therefore not appealable.  This  Court  pointed  out  that  the  order neither affected  the merits  of the  controversy not did it terminate or  dispose of  the suit.  In this connection, the Court observed as follows:           "The judgment  must  be  the  final  pronouncement      which puts an end to the proceeding so far as the court      dealing with it is concerned. It certainly involves the      determination of some right or liability, though it may      not be  necessary that  there must be a decision on the      merits.           ...            ...                 ...           We have indicated that the essential features of a      ’judgment’ are  according to both the, Calcutta and the      Madras High Courts and all that we need say is that, in      our opinion,  an order  under clause  13 of the Letters      Patent does  not satisfy  the tests  of a ’judgment’ as      formulated by either of these High Courts".      Apart from  this what  is more  important is  that  the Court clearly observed that as an order granting leave under cl. 12 of the Letters Patent constitutes the very foundation of the  suit, hence  if by  an order such leave is rescinded the suit  automatically comes  to an end and there can be no doubt that  such an  order would  be  a  judgment.  In  this connection, this Court observed as follows:-           "Leave granted  under clause  12  of  the  Letters      Patent constitutes  the very  foundation  of  the  suit      which is 248      instituted on  its basis.  If such  leave is rescinded,      the suit  automatically comes to an end and there is no      doubt that such an order would be a judgment".       Thus,  from this  case an  important test  that can be spelt out  is that where an order which is the foundation of the jurisdiction  of the Court or one which goes to the root of the  action, is  passed against  a particular  party,  it doubtless amounts  to a judgment. As we have already pointed out apart  from these  observations this  Court  refused  to embark on  an enquiry as to in what cases an order passed by a Trial  Judge would  be a ’judgment’ for purposes of appeal before a larger Bench.      Again in  Union of India v. Mohindra Supply Co. (supra) this  Court  clearly  held  that  in  enacting  s.  104  the intention of  the Legislature  was to  preserve the  Letters Patent jurisdiction  of the  High Court  and provided  for a right to  appeal from  the Trial Judge to the Division Bench without affecting  the provisions  of the  Code of  1908. In this connection, the Court observed as follows :-           "Under  the   Code,  as   amended,  the  view  has      consistently been  taken that  interlocutory  judgments      (i.e., decisions  though not amounting to decrees which      affect the  merits of the questions between the parties

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    by determining  some  right  or  liability)  passed  by      single Judges  of Chartered High Courts were appealable      under the Letters Patent".      We might  mention here  that the  observations of  this Court completely  demolish the arguments of some of the High Courts that  s. 104  does not apply to internals in the High Court because  this Court  while referring  to the Code made specific reference  to s.  104 in  the  previous  paragraph. Apart from  this, there  is no  observation  by  this  Court regarding essential  requisites of  a Judgment.  In State of U.P. v.  Dr. Vijay  Anand Maharaj (supra) the order impugned passed by  the Single  Judge  was  an  order  dismissing  an application filed  by the  applicant to  review the order of the Trial  Judge. The question for determination was whether the order  was a  judgment so  as to  be appealable  to  the Division Bench.  This Court  referred to the observations of Hidayatullah, J. extracted in Manohar V. Baliram (supra) and though they  did not  expressly approve  this decision  they indirectly seem  to have been impressed by the reasons given by Hidayatullah,  J. Nothing  further was said by this Court because it held that on the facts of that case the 249 order of  the Trial  Judge dismissing  the  application  for review was  A appealable.  We might  mention here that under clause  (w)  of  order  43  Rule  1  an  order  granting  an application for review is appealable. On a  parity of reasoning, therefore, an order dismissing an application for  review would  also be  appealable under the Letters Patent  being a  judgment  though  it  is  not  made appealable under order 43 Rule 1.      In Shankarlal  Aggarwal’s case (supra) while indicating the divergence of judicial opinion on the subject this Court held that  an order under s. 202 of the Indian Companies Act was a  judgment within  the meaning  of Letters  Patent  and therefore  appealable.   We  might  mention  here  that  the Companies Act which confers additional original jurisdiction on the  Trial Judge  expressly makes  an order passed by the Trial Judge  under s.  202 appealable  and, therefore, it is manifest that any order passed under s. 202 would have to be appealable under  the Companies  Act and  therefore  it  was rightly construed as a judgment.      In Radhey  Shyam v.  Shyam Behari  (supra) the question was whether  in an application under order 21 rule 90 to set aside an  auction sale an order passed by the Court would be a judgment  affecting valuable  rights. This Court held that an order  in such  proceedings affected  valuable rights and was therefore  appealable. In  this  connection,  the  Court observed as follows:-           "In our  view an  order in  a proceeding  under O.      XXI, r.  90 is  a "judgment"  in  as  much  as  such  a      proceeding raises  a controversy  between  the  parties      therein affecting  their valuable  rights and the order      allowing  the   application  certainly   deprives   the      purchaser of  rights accrued  to him as a result of the      auction-sale."      Thus, the  only point  which emerges from this decision is that  whenever a  Trial Judge decides a controversy which affected valuable  rights of  one of the parties, it must be treated to  be a  judgment within the meaning of the Letters Patent. 250      The last  case of this Court to which our attention has been drawn  is Shanti  Kumar R.  Canji v. The Home Insurance Co. Of  New York  where the court was considering the effect of an  order passed by the Trial Judge allowing amendment of

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the plaint  and the  question at  issue was  whether such an order would  be a judgment within the meaning of the Letters Patent. The  following observations  were made by this Court in the aforesaid case.           "We are  in agreement  with the  view expressed by      the High  Court at  Calcutta in  the M.B. Sirkar’s case      (AIR  1956  Cal.  630)  as  to  when  an  order  on  an      application for  amendment can become a judgment within      the meaning  of clause  15 of the Letters Patent. If an      amendment merely  allows the  plaintiff to  state a new      cause of  action or to ask a new relief or to include a      new ground  of relief  all that  happens is  that it is      possible for the plaintiff to raise further contentions      in  the  suit,  but  it  is  not  decided  whether  the      contentions are  right. Such  an amendment does nothing      more than  regulate the  procedure  applicable  to  the      suit. It does not decide any question which touches the      merits of  the controversy  between the parties. Where,      on the  other hand,  an amendment  takes away  from the      defendant the defence of immunity from any liability by      reason of  limitation, it  is  a  judgment  within  the      meaning of  clause 15 of the Letters Patent. The reason      why it  becomes a  judgment is  that it  is a  decision      affecting  the  merits  of  the  question  between  the      parties by  determining the right or liability based on      limitation. It  is the  final decision  as far  as  the      trial court is concerned.           In finding  out whether  the order  is a  judgment      within the  meaning of  clause 15 of the Letters Patent      it has  to be  found out  that the  order  affects  the      merits of the action between the parties by determining      some right  or liability.  The right or liability is to      be found out by the court. The nature of the order will      have to be examined in order to ascertain whether there      has been a determination of any right or liability".           (Emphasis ours) 251 Thus, having  noticed the ratio of some of the cases of this Court referred  to above,  regarding the  tests to determine the import and meaning of the word ’judgment’ we now proceed to deal  with the specific question after interpreting cl.15 of the  Letters Patent  of the  Bombay High  Court  and  the corresponding  clauses  of  Letters  Patent  of  other  High Courts. We  shall endeavour to interpret the connotation and the import  of the word ’judgment’ particularly in the light of pertinent  and pointed observations made by this Court on earlier occasions as discussed above.      The relevant  portion of  cl. 15  of the Letters Patent may be extracted thus :-           "We do  further ordain that an appeal shall lie to      the said  High Court  of Judicature  at Madras, Bombay,      Fort William  in Bengal  from the judgment.. ....... of      one Judge of the said High Court.. "      Clause 15  makes no  attempt to  define what a judgment is. As  Letters Patent is a special law which carves out its own sphere,  it would  not be possible for us to project the definition of  the word  ’judgment’ appearing in s. 2 (9) of the Code  of 1908, which defines ’judgment’ into the Letters Patent:           "judgment’ means  the statement given by the Judge      of the grounds of a decree or order".      In Mt.  Shahzadi Begam v. Alak Nath and Ors., Sulaiman, C.J., very  rightly pointed  out that  as the Letters Patent were drafted  long before  even the Code of 1882 was passed, the word  ’judgment’ used  in the  Letters Patent  cannot be

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relatable to  or confined to the definition of ’judgment’ as contained in  the Code  of Civil  Procedure which  came into existence long  after the Letters Patent were given. In this connection, the Chief Justice observed as follows :-           "It has  been held  in numerous  cases that as the      Letters  Patent  were  drafted  long  before  even  the      earlier Code  of 1882  was passed,  the word ’judgment’      used therein does not 252      mean the  judgment as  defined in  the existing Code of      Civil Procedure.  At the  same time the word ’judgment’      does  not   include  every   possible   order,   final,      preliminary or  interlocutory passed  by a Judge of the      High Court".      We  find  ourselves  in  complete  agreement  with  the observations made by the Allahabad High Court on this aspect of the matter.       The definition of the word ’judgment’ in sub-s. (9) of s. 2  of the  Code of  1908 is linked with the definition of ’decree’ which is defined in sub-s. (2) of s. 2 thus:           "decree"  means   the  formal   expression  of  an      adjudication  which,   so  far  as  regards  the  Court      expressing it,  conclusively determines  the rights  of      the parties with regard to all or any of the matters in      controversy in  the suit  and may be either preliminary      or final.  It shall  be deemed to include the rejection      of a  plaint and  the  determination  of  any  question      within  section  47  or  section  144,  but  shall  not      include-      (a)  any adjudication  from which  an appeal lies as an           appeal from an order, or      (b)  any order of dismissal for default.           Explanation:-A decree  is preliminary when further      proceedings have  to be  taken before  the suit  can be      completely  disposed   of.  It   is  final   when  such      adjudication completely disposes of the suit. It may be      partly preliminary and partly final".      Thus, under  the Code  of Civil  Procedure, a  judgment consists of the reasons and grounds for a decree passed by a court. As  a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the  parties with  regard to all or any of the matters in controversy. The  concept of  a judgment  as defined  by the Code of  Civil Procedure  seems to  be rather narrow and the limitations engrafted by sub-s. (2) of s. 2 253 cannot be  physically imported  into the  definition of  the word ’judgment’  as used  in cl.  15 of  the Letters  Patent because the  Letters Patent has advisedly not used the terms ’order’ or ’decree’ anywhere. The intention,  therefore,  of the  givers   of  the  Letters  Patent  was  that  the  word ’judgment’ should  receive a  much wider  and  more  liberal interpretation than  the word ’judgment’ used in the Code of Civil Procedure.  At the  same time,  it cannot be said that any order  passed  by  a  Trial  Judge  would  amount  to  a judgment; otherwise  there will  be no  end to the number of orders which  would be  appealable under the Letters Patent. It seems  to us  that the  word ’judgment’ has undoubtedly a concept of  finality in  a broader and not a narrower sense. In other words, a judgment can be of three kinds :.      (1)  A Final  Judgment-a judgment which decides all the           questions or  issues in  controversy so far as the           Trial Judge  is concerned  and leaves nothing else           to be  decided. This  would mean that by virtue of

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         the judgment,  the suit  or action  brought by the           plaintiff is  dismissed or  decreed in  part or in           full. Such  an order  passed by  the  Trial  Judge           indisputably  and  unquestionably  is  a  judgment           within the  meaning of the Letters Patent and even           amounts to  a decree  so that  an appeal would lie           from such a judgment to a Division Bench      (2)  A preliminary judgment-This kind of a judgment may           take two  forms-(a) where  the Trial  Judge by  an           order dismisses  the suit  without going  into the           merits of  the suit  but  only  on  a  preliminary           objection raised  by the  defendant or  the  party           opposing on  the  ground  that  the  suit  is  not           maintainable. Here  also, as  the suit  is finally           decided one  way or the other, the order passed by           the  Trial  Judge  would  be  a  judgment  finally           deciding the  cause so  far as  the Trial Judge is           concerned and  therefore appealable  to the larger           Bench.  (b)  Another  shape  which  a  preliminary           judgment may  take is  that where  the Trial Judge           passes an  order  after  hearing  the  preliminary           objections raised  by the  defendant  relating  to           maintainability  of   the  suit,   e.g.,  bar   of           jurisdiction, res  Judicata, a  manifest defect in           the suit,  absence of  notice under section 80 and           the like,  and these objections are decided by the           Trial Judge 254           against the  defendant, the suit is not terminated           but continues  and has  to be  tried on merits but           the  order   of  the  Trial  Judge  rejecting  the           objections doubtless  adversely affects a valuable           right of  the defendant who, if his objections are           valid, is  entitled to  get the  suit dismissed on           preliminary grounds.  Thus, such  an R  order even           though  it   keeps  the  suit  alive,  undoubtedly           decides an  important aspect  of the  trial  which           affects a  vital right  of the defendant and must,           therefore, be  construed to be a judgment so as to           be appealable to larger Bench.      (3)  Intermediary or Interlocutory judgment-Most of the           interlocutory orders  which contain the quality of           finality are  clearly specified  in clauses (a) to           (w) of  order 43 Rule 1 and have already been held           by us  to be  judgments within  the meaning of the           Letters Patent  and, therefore,  appealable. There           may also  be interlocutory  orders which  are  not           covered by  o. 43  R.1 but  which also possess the           characteristics and trappings of finality in that,           the orders  may adversely  affect a valuable right           of the  party or decide an important aspect of the           trial in  an ancillary  proceeding. Before such an           order can  be a judgment the adverse effect on the           party  concerned  must  be  direct  and  immediate           rather than  indirect  or  remote.  For  instance,           where the  Trial Judge in a suit under order 37 of           the Code  of Civil Procedure refuses the defendant           leave to  defend  the  suit,  the  order  directly           affects the  defendant because he loses a valuable           right  to  defend  the  suit  and  his  remedy  is           confined only  to contest  the plaintiff’s case on           his own  evidence without  being given a chance to           rebut that  evidence. As  such  an  order  vitally           affects a  valuable right of the defendant it will           undoubtedly be  treated as  a judgment  within the

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         meaning  of   the  Letters  Patent  so  as  to  be           appealable to  a larger  Bench. Take  the converse           case in  a similar  suit  where  the  trial  Judge           allows the  defendant to  defend the suit in which           case although  the plaintiff is adversely affected           but the  damage or  prejudice caused to him is not           direct or  immediate but  of a  minimal nature and           rather too  remote  because  the  plaintiff  still           possesses his  full right to show that the defence           is 255           false and succeed in the suit. Thus, such an Order           passed by  the Trial  Judge would  not amount to a           judgment within  the meaning  of  cl.  15  of  the           Letters Patent but will be purely an interlocutory           order.                Similarly, suppose  the Trial Judge passes an           Order setting  aside an exparte decree against the           defendant, which  is not  appealable under  any of           the clauses of O. 43 R.1 though an order rejecting           an application  to set  aside  the  decree  passed           exparte falls  within O.  43 R.l  cl. (d)  and  is           appealable, the  serious question  that arises  is           whether or  not the  order first  mentioned  is  a           judgment within the meaning of Letters Patent. The           fact, however,  remains  that  the  order  setting           aside the  ex-parte decree puts the defendant to a           great advantage and works serious injustice to the           plaintiff because  as a  consequence of the order,           the plaintiff  has now  to contest the suit and is           deprived of the fruits of the decree passed in his           favour. In  these  circumstances,  therefore,  the           order passed  by the Trial Judge setting aside the           ex  parte  decree  vitally  affects  the  valuable           rights of  the plaintiff  and hence  amounts to an           interlocutory   judgment    and   is    therefore,           appealable to a larger Bench.      In the  course of the trial, the Trial Judge may pass a number of  orders whereby  some of  the various  steps to be taken by  the parties in prosecution of the suit may be of a routine  nature   while  other   orders   may   cause   some inconvenience to  one party  or the  other, e.g.,  an  order refusing an  adjournment, an  order refusing  to  summon  an additional  witness  or  documents,  an  order  refusing  to condone delay  in filing  documents, after the first date of hearing an  order of  costs to  one of  the parties  for its default or  an order  exercising discretion  in respect of a procedural matter  against one  party  or  the  other.  Such orders  are   purely  interlocutory  and  cannot  constitute judgments because  it will  always be  open to the aggrieved party to  make a  grievance of  the order passed against the party concerned  in the  appeal against  the final  judgment passed by the Trial Judge.      Thus, in  other words  every interlocutory order cannot be regarded  as a  judgment but  only those  orders would be judgments which decide matters of moment or affect vital and valuable rights 256 of the parties and which work serious injustice to the party concerned. Similarly,  orders  passed  by  the  Trial  Judge deciding  question   of  admissibility  or  relevancy  of  a document also  cannot be  treated as  judgments because  the grievance on  this score  can be  corrected by the appellate court in appeal against the final judgment.       We  might give  another instance  of an  interlocutory

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order which  amounts to  an exercise of discretion and which may yet  amount to  a judgment  within the  meaning  of  the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant  is taken  away and  rendered nugatory.  It is manifest that  in such  cases, although  the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right  of defence  to  the  suit.  Such  an  order, therefore,  though  interlocutory  in  nature  contains  the attributes and  characteristics  of  finality  and  must  be treated as  a judgment  within the  meaning of  the  Letters Patent. This  is what  was held  by  this  Court  in  Shanti Kumar’s case (supra), as discussed above.      Let us  take another  instance of a similar order which may not amount to a judgment. Suppose the Trial Judge allows the plaintiff  to amend  the plaint  by adding  a particular relief  or   taking  an   additional  ground  which  may  be inconsistent with  the pleas  taken by him but is not barred by limitation  and does  not work  serious injustice  to the defendant wh  o would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order  of  the  Trial  Judge  would  only  be  a  simple interlocutory  order   without  containing  any  quality  of finality and  would therefore  not be  a judgment within the meaning of cl. 15 of the Letters Patent      The various  instances given  by  us  would  constitute sufficient guidelines  to determine  whether or not an order passed by  the Trial  Judge is a judgment within the meaning of the  Letters Patent.  We must  however hasten to add that instances given  by us  are illustrative and not exhaustive. We have  already referred  to the various tests laid down by the Calcutta,  Rangoon and Madras High Courts. So far as the Rangoon High  Court is concerned we have already pointed out that the strict test that an order passed by the Trial Judge would be a judgment only if it amounts to a decree 257 under the  Code of Civil Procedure, is legally erroneous and opposed to  the very tenor and spirit of the language of the Letters Patent.  We, therefore,  do not  approve of the test laid down  by the  Rangoon  High  Court  and  that  decision therefore has  to be  confined only  to the  facts  of  that particular case because that being a case of transfer, it is manifest that  no question  of any  finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J. in Tuljaram Row’s case  (supra) (which  seems to  have been  followed by most of  the High  Courts) minus  the broader  and the wider attributes adumbrated  by Sir White, C.J. Or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above.       Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:      (1)  That the  Trial Judge  being a  senior court  with           vast  experience   of  various   branches  of  law           occupying a  very high status should be trusted to           pass discretionary  or interlocutory  orders  with           due regard to the well settled principles of civil           justice. Thus, any discretion exercised or routine           orders passed  by the Trial Judge in the course of           the suit which may cause some inconvenience or, to           some extent,  prejudice one  party  or  the  other           cannot be  treated as  a  judgment  otherwise  the           appellate court  (Division Bench)  will be flooded           with appeals  from all  kinds of  orders passed by

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         the Trial  Judge. The  courts must give sufficient           allowance  to   the  Trial   Judge  and   raise  a           presumption that  any discretionary order which he           passes must be presumed to be correct unless it is           ex facie  legally erroneous  or causes  grave  and           substantial injustice.      (2)  That the  interlocutory order  in order  to  be  a           judgment must  contain the traits and trappings of           finality  either   when  the   order  decides  the           questions   in   controversy   in   an   ancillary           proceeding or  in the  suit itself or in a part of           the proceedings.      (3)  The tests  laid down by Sir White, C.J. as also by           Sir Couch,  C.J. as modified by later decisions of           the Calcutta  High Court  itself which  have  been           dealt with  by us  elaborately should  be borne in           mind. 258      Thus, these  are some  of the  principles  which  might guide a  Division Bench  in deciding whether an order passed by the  Trial Judge amounts to a judgment within the meaning of the  Letters Patent.  We might,  however, at  the risk of repetition give  illustrations of interlocutory orders which may be treated as judgments:      (1)  An order  granting leave  to amend  the plaint  by           introducing a new cause of action which completely           alters the  nature of  the suit  and takes  away a           vested right  of limitation  or any other valuable           right accrued to the defendant      (2)  An order rejecting the plaint.       (3)  An order  refusing leave to defend the suit in an           action under Order 37, Code of Civil Procedure.      (4) An  order  rescinding  leave  of  the  Trial  Judge           granted by  him under  clause 12  of  the  Letters           Patent.      (5)  An order  deciding a  preliminary objection to the           maintainability of  the  suit  on  the  ground  of           limitation, absence  of notice  under s.  80,  bar           against  competency   of  the   suit  against  the           defendant even though the suit is kept alive.      (6)  An order  rejecting an  application for a judgment           on admission under order 12 Rule 6.      (7)  An order  refusing to  add necessary  parties in a           suit under s. 92 of the Code of Civil Procedure.      (8)  An order varying or amending a decree.      (9)  An order refusing leave to sue in forma pauperis.      (10) An order granting review.      (11) An order  allowing withdrawal  of  the  suit  with           liberty to file a fresh one.      (12) An  order holding  that  the  defendants  are  not           agriculturists within  the meaning  of the special           law.      (13) An order  staying or refusing to stay a suit under           s. 10 of the Code of Civil Procedure. 259      (14) An order granting or refusing to stay execution of           the decree.      (15) An  order deciding  payment of  court fees against           the plaintiff.      Here, it  may be  noted that  whereas an order deciding the nature  of the  court fees  to be  paid by the plaintiff would  be  a  judgment  but  this  order  affects  only  the plaintiff or  the Government  and not  the defendant.  Thus, only the plaintiff or the Government as the case may be will have the  right to  file an appeal in the Division Bench and

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not the  defendant because  the question of payment of court fees is  a matter  between the  Government and the plaintiff and the defendant has no locus in this regard.      We have by way of sample laid down various illustrative examples of  an order which may amount to judgment but it is not possible  to give  such an  exhaustive list as may cover all possible  cases. Law  with its  dynamism, pragmatism and vastness  is  such  a  large  ocean  that  it  is  well-nigh impossible for  us to envisage or provide for every possible contingency or  situation so  as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket. We, however, hope and trust that by and  large the  controversy raging for about a century on the connotation  of the  term ’judgment’ would have now been settled and  a few cases which may have been left out, would undoubtedly be  decided by  the court concerned in the light of the tests. Observations and principles enunciated by us.       In  the instant  case, as the order of the Trial Judge was one  refusing appointment  of a receiver and grant of an ad-interim injunction,  it is  undoubtedly a judgment within the meaning  of the  Letters Patent  both because in view of our judgment, order 43 Rule 1 applies to internal appeals in the High  Court and  apart from  it such  an order  even  on merits contains  the quality of finality and would therefore be a  judgment within  the meaning  of cl. 15 of the Letters Patent. The  consistent view  taken by the Bombay High Court in the  various cases  noted above  or other cases which may not  have   been  noticed   by  us   regarding  the   strict interpretation of  cl. 15  of the  Letters Patent are hereby overruled and  the Bombay  High Court  is directed to decide the question  in future  in the  light of  our decision. We, therefore, hold  that the order passed by the Trial Judge in the instant  case being a judgment within the meaning of cl. 15 of the 260 Letters Patent,  the appeal  before the  Division Bench  was maintainable and the Division Bench of the High Court was in error in  dismissing  the  appeal  without  deciding  it  on merits. We  have already  directed the  High Court to decide the appeal  on merits  by our  formal order  dated April 22, 1981.      Before closing  this judgment  we may  indicate that we have refrained  from expressing any opinion on the nature of any order  passed by  a Trial  Judge in any proceeding under Art. 226  of the  Constitution which are not governed by the Letters Patent  but by  rules framed under the Code of Civil Procedure under which in some High Courts writ petitions are heard  by  a  Division  Bench.  In  other  High  Court  writ petitions are  heard by a Single Judge and a right of appeal is given  from the order of the Single Judge to the Division Bench after preliminary hearing,       In the circumstances we make no order as to costs.      AMARENDRA NATH  SEN, J.  The only  question which falls for determination in this appeal by special leave is whether an order  passed by  a Single  Judge on the original side of the Bombay  High Court refusing to grant an injunction or to appoint a  receiver in  an interlocutory application made in the suit,  is appealable  or  not  ?  In  other  words,  the maintainability of  an appeal  filed before a Division Bench of the  Bombay High  Court against  an order  of  a  learned single Judge  of the  High Court dismissing an interlocutory application for injunction and for appointment of a receiver by way  of interim relief pending final disposal of the suit in the  original side  of the High Court, forms the subject- matter of the present appeal.

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    The question is of some importance, as there appears to be no uniformity of the view amongst the various High Courts on the competence and the maintainability of such an appeal.      The appellant  has filed  in the  original side  of the Bombay High  Court a  suit for  specific performance  of  an agreement dated  12th January,  1979. In  the said  suit the appellant, as  plaintiff in  the suit,  took out a notice of motion seeking the following reliefs:-      (a)  that pending the hearing and final disposal of the           suit, the  respondent i.e.  the defendant  in  the           suit, be  restrained by  an order  and  injunction           from in any 261           manner dealing  with or disposing of or alienating           or A  encumbering the right, title and interest in           respect of the said lands and the said land or any           part thereof  or parting  possession of  the  said           land or any part thereof;      (b)  that pending the hearing and final disposal of the           suit, the Court receiver High Court Bombay or some           other fit  and proper person be appointed receiver           of the  said lands  which forms the subject-matter           of the agreement, with all powers under 0.40, rule           I of the Code of Civil Procedure;      (c)  ad-interims in terms of prayers (a) (b); and      (d)   for such  further and other reliefs as the nature           and circumstances of the case may require.      A  learned   single  Judge   dealing  with   the   said application of  the appellant  on the  original side  of the Bombay High  Court dismissed  the said  application. Against the  order  of  the  learned  single  Judge,  the  appellant preferred  an   appeal  to  the  High  Court  of  Bombay.  A preliminarily objection has been raised before the appellate Court as  to the maintainability of the appeal on the ground that no  appeal lay  from the  order of  the learned  Single Judge on  the original  side of the High Court, as the order could not  be considered  to  be  a  ’judgment’  within  the meaning of  cl. IS  of the Letters Patent and the appeal was incompetent and  not maintainable.  The appellate  Court for reasons recorded in the Judgment upheld the said preliminary objection, holding  that the  order under  appeal was  not a judgment and no appeal would lie from the said order and the appeal, therefore  was  incompetent  and  not  maintainable. Against the  order of  the Division Bench of the Bombay High Court, the  appellant has  preferred this  appeal by special leave granted by this Court.      After the  hearing of  the appeal  was concluded,  this Court in  view of  the urgency of the matter passed an order allowing the  appeal and  remanding the matter to the Bombay High Court  for decision  of the  appeal on  merits and this Court observed  at the time of the passing of the order that this Court  would state  reasons later  on. The full text of the order  has been  set out  in the  judgment of my learned brother Fazal Ali. J. 262      I have  had the  benefit of  reading the judgment of my learned brother Fazal Ali, J. in advance. I concur generally with the  views expressed by my learned brother. 1, however, propose to state my own reasons for the order earlier passed by us.      The  learned   counsel  appearing   on  behalf  of  the respective parties invited us only to decide the question of appealability of  the order  under appeal without going into the merits  of the case. The learned counsel for the parties have submitted  before  us  that  there  is  a  conflict  of

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decisions on  the question  of appealability  of an order of this kind  and maintainability  of an  appeal from  such  an order and  this Court should resolve the conflict and decide the  question   of  appealability   of  such  an  order  and necessarily the  maintainability of the appeal to a Division Bench of  the High  Court. It  has  been  further  submitted before us  that in  the event  of this Court holding that an appeal lay  from the  order in question and an appeal to the the  Division   Bench  from  the  order  was  competent  and maintainable, this  Court should  remand the  appeal to  the High Court  for decision  on merits  and should  not in this appeal go  into the  merits of the case. The learned counsel for the  parties, in view of the aforesaid submissions made, did not  advance any  arguments on  the merits  of the  case before us.      The only  question with  which we are concerned in this appeal, as  I have  already indicated, therefore, is whether the order  of the  learned Single Judge refusing to grant an injunction or  to appoint  a receiver  on the  interlocutory application of  the appellant,  is appeal  able or  not; or, whether the  appeal against  the order of the learned Single Judge to  the Division  Bench of the High Court is competent and maintainable or not.      Mr. Sorabjee,  learned counsel  appearing on  behalf of the appellant,  has raised  two principal  contentions.  The first contention  urged by  Mr. Sorabjee  is that in view of the provisions  contained in  S. 104  of the  Code of  Civil Procedure  read   with  order   43  thereof,  the  order  is appealable under  the Code  and an  appeal  from  the  order becomes clearly maintainable. The other contention raised by Mr. Sorabjee  is that  the order  should  in  any  event  be considered to  be a judgment within the meaning of clause IS of the  Letters  Patent,  bearing  in  mind  the  provisions contained in  S. 104 of the Code of Civil Procedure and also order 43 thereof.      In support  of his  first contention,  Mr. Sorabjee has argued that  an appeal  is a  creature of statute and in the absence of any 263 statutory provisions  making any  other appealable no appeal will A  normally lie  against any  order passed  by a single Judge. Mr.  Sorabjee contends  that cl.  I S  of the  Letter Patent makes  such  provision  for  an  appeal  being  filed against any  order passed  by a  learned Single Judge on the original side of the High Court. It is the contention of Mr. Sorabjee  that  as  Cl.  15  of  the  Letters  Patent  makes provision for  preferring an  appeal against an order passed by a learned Single Judge on the original side, provided the conditions laid  down in the said clause are satisfied, Code of Civil  Procedure and  various other  Statutes  also  make provision regarding  appeal from  orders passed by a learned Single Judge.  Mr. Sorabjee  has submitted  that the Code of Civil Procedure  confers substantive  rights  of  preferring appeals against  particular orders specified in the Code. In this connection  Mr. Sorabjee  has drawn our attention to S. 104 and  also order  43 of  the Code of Civil Procedure. Mr. Sorabjee argues  that the  Code of Civil Procedure confers a right of appeal on a litigant in respect of the orders which have been  made statutorily  appealable  by  the  provisions contained in  S. 104  and order  43 of  the  Code  of  Civil Procedure. It  is the argument of Mr. Sorabjee that the Code of Civil  Procedure makes inter-alia general provisions with regard to  appeals and  also  specifically  confers  on  the litigant a  right in  respect of  various  orders,  just  as various other  statutes make  special or specific provisions

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with regard  to the  right of appeal in respect of any order under the  particular statute.  Mr. Sorabjee  has  submitted that S. 104 of the Civil Procedure Code and order 43 thereof clearly apply  to the  original side  of a  High  Court.  In support of  these submissions,  Mr. Sorabjee  has drawn  our attention  to   the  various  provisions  of  the  Code  and particularly to Ss. 4, 98-104, 116 to 120, and S. 122 and to order 43 rule 1 thereof. Mr. Sorabjee in this connection has also relied on the following decisions :-      1. Mathura Sundari Dass v. Haran Chandra Shall(1)      2. Lea Badin v. Upendra Mohan Roy Choudhary (2)      3. Union of India v. Mohindra Supply Co. (3)      4. Kumar Gangadhar Bagla v. Kanti Chander Mukherji (4)      5. Sonbai v. Ahmedbhai Habibhai (5) 264      Mr. Sorabjee  has criticised  the view expressed by the Bombay High Court that S. 104 of the Code of Civil Procedure and order  43 thereof  do not  apply to an order passed by a learned Single  Judge on the original side of the High Court and an  order passed  by  a  learned  Single  Judge  on  the original side can only become appealable if the order can be said to  be a ’judgment’ within the meaning of cl. 15 of the Letters Patent.  Mr. Sorabjee  comments that  cl. IS  of the Letters Patent does not, in any way, seek to control or curb the provisions  contained in S. 104 and order 43 of the Code of Civil  Procedure. He  submits that a plain reading of the various sections  of the  Code of  Civil Procedure  make  it clear that  the pro visions contained in S. 104 and order 43 of the  Code are applicable to the original side of the High Court. It  is his submission that the provisions of the Code and the provisions contained in cl. 15 of the Letters Patent are not  at all  in conflict,  as, clause  IS of the Letters Patent may  make such  orders which  may not  be  appealable under the Code, still appealable as judgment under cl. 15 of the Letters. Patent. In other words, it is the submission of Mr. Sorabjee  that cl.  IS of  the Letters  Patent  and  the provisions of  the Code  are indeed  supplementary  to  each other.      Mr. Sorabjee  has  fairly  submitted  that  before  the Division Bench  of the  Bombay High Court this argument that the order is appealable under the provisions of the Code and the appeal is, there- t fore, competent was not advanced. It is his submission that this argument was not advanced before the Division  Bench of the Bombay High Court, as the view of the Bombay High Court has been that the provisions of S. 104 and of  order 43 of the Code of Civil Procedure do not apply to the  original side of the Bombay High Court. Mr. Sorabjee has argued  that though  in this  appeal this aspect was not argued before  the Division  Bench of the Bombay High Court, he is  entitled to urge this point before this Court as this point is a pure point of law.      Mr. Sorabjee  has next  contended that in any event the order under  appeal should  be considered  to be  a judgment within the  meaning of  cl. 15  of the  Letters  Patent.  He argues that  the word ’judgment’ in clause 15 of the Letters Patent should be construed liberally so as to include within its fold  any order which has been made appealable by virtue of the  provisions contained  in the  Code or  in any  other statute. He  submits that  such an interpretation will be in conformity with  the principles  of justice  and will  truly reflect intention of the Legislature and will avoid any kind of conflict 265 between the  provisions contained  in cl.  15 of the Letters Patent and  A the  provisions contained in the Code of Civil

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Procedure and  in any  other statute.  It is  his submission that the word ’judgment’ in cl. 15 of the Letters Patent may include various  other orders  which may  not  otherwise  be appealable under  the provisions  of the  Code or  any other Statute but  may still  become appealable  as ’judgment’  by virtue of the provisions contained in the Letters Patent. In other words,  it is  the contention of Mr. Sorabjee that the expression ’judgment’ in cl. 15 of the Letters Patent should be so  construed as  to include necessarily all orders which are appealable  under any  statute and  also in  appropriate cases various  other orders  which are  not  expressly  made appealable by  any statute.  He contends that the provisions of the  Code contained  S. 104  and order 43 or in any other statute with regard to the appealability of any order do not have the  effect of  curtailing  or  affecting  the  special jurisdiction and  power of  the  Court  of  entertaining  an appeal from  any other order, if the Court is satisfied that the order  is in effect a judgment within the meaning of cl. 15 of the Letters Patent. Mr. Sorabjee has submitted that as to  the   true  meaning,  effect  and  import  of  the  word ’judgment’ in  cl. 15  of the  Letters Patent,  there  is  a divergence of  judicial opinion, and the word ‘judgment’ has come up  for consideration  before various  Courts  in  many cases. In  this connection, Mr. Sorabjee has referred to the following decisions :-      1.    The  Justice of  the Peace  for Calcutta  v.  The           Orientatal Gas Co. Ltd. (1)      2.   T.V. Tulzaram Row v. M.K.R.V. Allagappachettiar           (2)      3.   Ruldu Singh v. Sanwal Singh (3)      4.   Shah Hari Dial & Sons v. Sohnamal Beliram (4)      5.    In Re: Dayabhai Jiwandas and Ors. v. A.M.M. Muru-           gappa Chettiar (5)      6.   Abdul Samad & Ors. v. State of J. & K. (6) 266      7.    Standard  Glass Beads  Factory  v.  Shri  Dhar  &           Ors.(1)      8.    Sri Raja Vallanki Venkata Chinnayamma Rao Bahadur           Zimidarni Garu  v. Sri  Raja Kotagiri  Subemma Rao           Bahadur Zimidarni Garu (2)      9.   Chitaranjan Mandal v. Shankar Prosad Sahani (3)      10.   Manohar Damadar  Bhoot v.  Baliram  Ganpat  Bhoot           (4)      11.    Masanta  Film  Distributors  Calcutta  v.  Sorab           Marwanji Modi (5)      12.  J.K. Chemicals Ltd. v. Kreba and Co.(6)      13.  Kedar Nath Mitter v. Denobandhu Shaha(7)      14.   Shorab Merwanji  Modi and  Anr. v.  Mansata  Film           Distributors and Anr.(8)      15.  M.B. Sarkar and Sons v. Powell and Co.(9)      16.   Asrumati Devi  v.  Kumar  Rupendra  Deb  Rai  and           Ors.(10)      17.  State of U.P. v. Dr. Vijay Anand Maharaj(11)      18.  National Bell Co. v. Metal Goods Co. (P) Ltd.(12)      19.  Shanti Kumar R. Canji v. The Home Insurance Co. Of           New York(13)      Mr. Sorabjee  has submitted  that this Court should lay down the  guidelines or  enumerate the  principles to remove the confusion  and resolve  the conflict  in the  sphere  of judicial determination as 267 to what  constitutes ’judgment’  within the meaning of cl 15 of the Letters Patent.      Mr. Kapadia  and Mr. Venugopal, learned counsel for the Respondents, have  submitted that the provisions of the Code

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of Civil  Procedure contained in S. 104 and order 43 thereof are not  applicable to  the original side of the Bombay High Court which  is a  Chartered  High  Court  in  view  of  the provisions contained  in cl.  15 of the Letters Patent. They have argued  that special jurisdiction has been conferred in the matter  of preferring  an appeal  against an  order of a Single Judge  on the original side of a Chartered High Court by  cl.   15  of   the  Letters   Patent  and  this  special jurisdiction of the High Court cannot in any way be affected by the provisions of the Code. In support of this contention reference has  been made to Ss. 3 and 4 of the Code of Civil Procedure and  particular reliance  has been placed on S. 4. They have also strongly relied on the decision of the Bombay High Court  in the  case of  Vaman Raoji  Kulkarni v. Nagesh Vishnu Joshi(1)  and also  on the  decision of the same High Court in  the case  of J.K.  Chemicals Ltd. v. Kreba and Co. (supra). They have submitted that these judgments for cogent reasons recorded  therein represent correct law and the view expressed by the Bombay High Court to the effect that S. 104 and order  43 of the Code of Civil Procedure do not apply to the original  side  of  the  Bombay  High  Court,  has  been consistently followed by the Bombay High Court and should be upheld by this Court. They have also relied on the following observations of  the  Judicial  Committee  in  the  case  of Hurrish Chunder Chowdhry v. Kali Sundari Debia(2) at p. 17:-           "It only  remains to  observe that their Lordships      do not think that sec. 588 of Act X. Of 1877, which has      the effect  of restricting  certain appeals, applies to      such a  case as  this, where  the appeal is from one of      the Judges of the Court to the full Court."      They have argued that if the provisions of the Code are not held to be applicable to the original side of the Bombay High Court,  then the  appeal from  the order of the learned Single Judge  can only  be maintained if the order becomes a ’judgment’ within the meaning 268 of cl. 15 of the Letters Patent. They have contended that an order on  an interlocutory  application refusing to grant an injunction or  appoint a receiver cannot be considered to be a ’judgment  within the  meaning of  cl. 1  S of the Letters Patent, as  such an order virtually does not decide anything and does  not in any way affect the merits of the suit. They have also  relied on  the decisions  which were cited by Mr. Sorabjee and  they have  placed particular  reliance on  the decision of  the Bombay  High Court  in  the  case  of  J.K. Chemicals Ltd. v. Kreba and Co. (supra). Mr. Kapadia and Mr. Venugopal have  both pointed  out to us that the question of appealability of  the order under the provisions of the Code was not argued before the High Court in the instant case and was sought  to be  argued for  the first time in this Court. Both of  them, however, have fairly stated that the question is one  of law and one of of considerable importance and the Court should decide the same.      I propose to deal with the question of applicability of the provisions  contained in S. 104 and order 43 of the Code of Civil  Procedure to  the original side of the Bombay High Court  in  the  first  instance.  Before  I  deal  with  the contentions urged by the counsel for the respective parties, it will be convenient to consider the relevant provisions of the Code.  S. I  of the  Code makes it clear that the Act is applicable to  whole of India excepting the places mentioned in the  said section  and the  Act,  therefore,  applies  to Maharashtra. S.  3 of the Code provides that for the purpose of this  Code, the District Court is subordinate to the High Court, and  every Civil Court of a grade inferior to that of

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a  District  Court  and  every  Court  of  Small  Causes  is subordinate to the High Court and District Court.      S. 4 of the Code reads:-      "(1) In  the absence  of any  specific provision to the           contrary, nothing  in this Code shall be deemed to           limit or otherwise affect any special or local law           now in  force or any special jurisdiction or power           conferred,  or   any  special  form  of  procedure           prescribed, by or under any other law for the time           being in force.        (2)  In  particular  and  without  prejudice  to  the           generality of  the proposition  contained in  sub-           section (1),  nothing in this Code shall be deemed           to limit or otherwise 269           affect any  remedy which  a landholder or landlord           may have under any law for the time being in force           for the recovery of lent of agricultural land form           the produce of such land."      S. 5  of the  Code deals  with the applicability of the provisions of the Code to Revenue Courts. S. 100 of the Code deals with  appeals from Appellate Decree and S. 100-A which has been  introduced into  the Code  w.e.f. 1.2.1977  by the Amending Act,  104 of  1976  provides  that  notwithstanding anything contained  in Letters  Patent for any High Court or in any  other instrument  having the  force of law or in any other law for the time being in force, where any appeal from an appellate  decree or  order is  heard and  decided  by  a single Judge  of a  High Court,  no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal  or from  any decree  passed in such appeal. The material provisions of S. 104 are:-           "S.  104   (1);  An  appeal  shall  lie  from  the      following  orders,  and  save  as  otherwise  expressly      provided in the body of this Code or by any law for the      time being in force, from no other orders :-            x            x             x              x            x            x             x              x      (ff) an order under S. 35A;      (fa) an  order under  S. 91  or S. 92 refusing leave to           institute a  suit of  the nature referred to in S.           91 or S. 92 as ’the case may be;      (g)  an order under S 95;      (h)   an order under any of the provisions of this Code           imposing  a   fine  or  directing  the  arrest  or           detention in the Civil prison of any person except           where such  arrest or detention is in execution of           a decree;      (i)  any order made under rules from which an appeal is           expressly allowed by rules;      Provided that  no appeal  shall lie  against any  order      specified 270      in clause  (i) save  on the ground that no order, or an      order for  the payment  of a less amount, ought to have      been made.      (2)   No appeal  shall lie  from any  order  passed  in           appeal under this section. "      Sections 105 and 106 may also be quoted:-      "(1) Save  as otherwise  expressly provided  no  appeal           shall lie  from any  order made  by a Court in the           exercise   of    its   original    or    appellate           jurisdiction; but,  where  a  decree  is  appealed           from, any  error, defect  or irregularity  in  any           order, affecting  the decision of the case, may be

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         set  forth   as  a  ground  of  objection  in  the           memorandum of appeal;      (2)   Notwithstanding anything contained in sub-section           (1), where  any party  aggrieved by  an  order  of           remand from  which an  appeal lies does not appeal           the reform,  he shall thereafter be precluded from           disputing its correctness.           S. 106:  Where an appeal from any order is allowed      it shall  lie to the Court to which an appeal would lie      from the  decree in  the suit  in which  such order was      made, or where such order is made by a court (not being      a  High   Court)   in   the   exercise   of   appellate      jurisdiction, then to the High Court.’’      Special provisions  relating to  the High  Courts,  not being the court of a Judicial Commissioner, are made in para IX of  the Code  which consists  of five sections namely Ss. 116 to 120 and the said sections are as follows:-      "S. 116:  This Part  applies only  to High  Courts  not being the Court of a Judicial Commissioner.      S. 117:  Save as  provided in this Part or in part X or in rules,  the provisions  of this Court shall apply to such High Courts.      S.  118:   Where  any  such  High  Court  considers  it necessary that  a decree  passed  in  the  exercise  of  its original civil  jurisdiction should  be executed  before the amount of 271      the costs  incurred in  the suit  can be ascertained by      taxation, the  Court may order that the decree shall be      executed forthwith,  except as  to so  much thereof  as      relates to the costs:           and, as  to so  much thereof  as  relates  to  the      costs, that  the decree  may be executed as soon as the      amount of the costs shall be ascertained by taxation.           S. 119:  Nothing in  this Code  shall be deemed to      authorise any  person on  behalf of  another to address      the  Court  in  the  exercise  of  its  original  civil      jurisdiction, or to examine witnesses, except where the      Court shall have in the exercise of the power conferred      by its charter authorised him so to do, or to interfere      with  the  power  of  the  High  Court  to  make  rules      concerning advocates, vakils and attorneyes.           S. 120:  The following  provisions shall not apply      to the High Court in the exercise of its original civil      jurisdiction, namely, secs. 16, 17 and 20.      S. 122 empowers the High Courts, not being the Court of a Judicial  Commissioner to  make rules regulating their own procedure and  the procedure of the Civil Courts subjects to their superintendence. S. 129 further provides:           "Notwithstanding anything  in this  Code, any High      Court not  being the  Court of  a Judicial Commissioner      may make  such rules  not inconsistent with the Letters      Patent or  order or  other law  establishing of  it  to      regulate its  own procedure  in  the  exercise  of  its      original civil  jurisdiction as it shall think fit, and      nothing herein  contained shall  affect the validity of      any such  rules in  force at  the commencement  of this      Code.      The material provisions contain in O. XLIII of the Code of Civil Procedure may be set out:           "An appeal  shall lie  from the  following  orders      under the provisions of S. 104, namely:-            x           x           x                x            x           x           x                x 272

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    (q)   an order  under rule 2, rule 3 or rule 6 of order           XXXVIII:      (r)   an order under rule 1, rule 2, rule 2A, rule 4 or           rule 10 of O. XXXIX;      (s)  an order under rule 1, or rule 4 of order XL.            x             x               x                 x      2. The  rules of  O. XLI shall apply, so far as may be, to appeals from orders."      On a  proper analysis of the relevant provisions of the Code there  cannot be,  in my  opinion, any  manner of doubt that S.  104 and  order 43  of the  Code of  Civil Procedure apply, to  the original side of the Bombay High Court. It is not in  dispute and  it cannot  be disputed that the Code of Civil Procedure  applies to the High Court. S. 1 of the Code which provides  for territorial  extent of  the operation of the Code  makes this position abundantly clear. The argument is that  S. 104  and order  43 of  the Code  do not have any application to the original side of the High Court, although various other  provisions of  the Code may apply to the High Court-including its original side. This argument, as we have earlier  noticed,  is  made  mainly  on  the  basis  of  the provisions contained  Ss. 3  and 4  of the Code. S. 3 of the Code deals with subordination of Courts. It is no doubt true that a  learned Single  Judge dealing with any matter on the original side  discharges his  duties as a Judge of the High Court, and  he can,  therefore, be  in no way subordinate to the High  Court. When a division Bench of a High Court hears an appeal  from any  decree, order or judgment of any Single Judge of the High Court in its original side there can be no question of any subordination of the Judge, presiding over a Bench on  the original  side of  the High  Court to the High Court. An  appeal admittedly lies to a division Bench of the High Court  from any  order passed by a learned single Judge on the  original side under cl. 15 of the Letters Patent, if the order  is a  ’Judgment’ within  the meaning  of the said clause. An  appeal also admittedly lies from a decree passed by a  Single Judge on the original side of the High Court to a division  Bench of  the  High  Court.  A  division  Bench, properly constituted,  is perfectly  competent  to  hear  an appeal from  any such  order which may constitute a judgment within the meaning of cl. 15 and from any decree by a Single Judge on the original side of the 273 High Court.  In the  same way, in case of any other order in respect of  which  right  to  prefer  any  appeal  has  been conferred by  a statute,  a division Bench of the High Court will be  competent to  hear such an appeal. S.3 of the Code, in my  opinion, has  really no  bearing on  the question and creates no  bar to  the competence and maintainability of an appeal from an order passed by a Judge on the original side, if the  order is  otherwise appealable. S. 4 of the Code has been enacted  to preserve any special or local law in force. An analysis  of the  material part  of this  section clearly indicates that  in the  absence of any specific provision to the contrary,  no provision  in the  Code shall be deemed to limit or  otherwise affect any special or local law in force or special  jurisdiction or  power conferred  or any special form of  procedure prescribed  by or  under any  Jaw for the time being  in force.  The argument that S. 104 and order 43 of  the  Code  affect  the  special  jurisdiction  or  power conferred on  the High  Court under  cl. 15  of the  Letters Patent is,  to my  mind, untenable.  Cl. 15  of the  Letters Patent was  enacted to provide for an appeal from the Courts of original  jurisdiction to the High Court in its appellate jurisdiction and  the said  clause undoubtedly confers power

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for the hearing of an appeal from a judgment of any judge on the original  side of  the High  Court. Though  cl. 15 makes special provisions  in relation to appeal from a judgment of a learned  single Judge  on the original side, yet it cannot be said that the side clause intended to lay down that in no other case  an appeal  will lie  from an order passed by any learned Judge  on the  original side,  even if  any specific provision is  made in  any other  statute making  any  other order appealable.  An appeal,  it has to be remembered, is a creature of a statute and litigant generally does not have a right of  appeal against  any decision  of a competent Court unless a  right of appeal has been specifically conferred on the litigant by law. Cl. 15 of the Letters Patent confers on the litigant  a  right  to  prefer  an  appeal  against  any judgment. Any  order which  is considered to be a ’judgment’ will be  appealable by virtue of the provisions contained in cl. 15 of the Letters Patent. In the same way other statutes may confer  on the  litigant the  right to  prefer an appeal against an  order; and  by virtue  of the  provisions of the statute such  an order shall become appealable. If any other statute confers  on the  litigant any  right  to  prefer  an appeal in respect of any other order, it cannot be said that such a  provision creating  a right  of appeal  in  any  way affects the  provisions contained  in cl.  15 of the Letters Patent. The special power and jurisdiction of the High court under cl.  15 to entertain an appeal from any judgment is in no way affected and is fully retained; 274 and in  addition to  the said  power, a  High Court  may  be competent to  entertain other  appeals by virtue of specific statutory provisions. S. 4 of the Code cannot, therefore, be said to  be in conflict with the provisions contained in cl. 15 of the Letters Patent and S. 4 of the Code does not limit or otherwise  affect the  power and jurisdiction of the High Court under cl. 15 of the Letters Patent. On the other hand, the Code  contains specific  provisions which go to indicate in which  case or to which Court the provisions of the Code, may or  may not  be applicable.  S.  S  of  the  Code  makes specific provisions  regarding  the  nature  and  manner  of applicability of  the Code to Revenue Courts and the Revenue Court has  also been  defined in  the said  section. On  the other hand,  in Ss.  116 to 120 it is convincingly indicated that S.  104 and  order 43  of the  Code of  Civil Procedure apply to  the original  side of a High Court. Ss. 116 to 120 are contained  in part  IX of  the Code  which makes special provisions relating  to High  Courts (not being the Court of Judicial Commissioner).  S. 117  specifically provides  that the provisions of the Code shall apply to High Court save as provided in  part IX  or in part X. S. 120 contained in part IX lays down that the provisions contained in Ss. 16, 17 and 20 of  the Code  shall not  apply to  the High  Court in the exercise of  its original  civil jurisdiction.  Part X which deals with rules and manner of framing thereof does not have any material  bearing on the question of applicability of S. 104 and  order 43  of the  Code to  the original side of the High Court.  The effect  of the special provisions contained in part  IX relating  to  High  Courts,  therefore,  clearly appears to  be that  the provisions  of  the  Code  have  as provided in  Part IX  or Part  X or  in rules,  apply to the original side  of the High Court and Ss. 16,17 and 20 of the Code do  not apply  to the High Court in the exercise of its original civil jurisdiction. S. 104 of the Code is contained in part  VII which  deals with appeals. Part VII of the Code dealing with  appeals consists  of the  sections  commencing from Ss. 96 to 112. This part VII dealing with appeals makes

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provisions for  an appeal  from original  decrees,  appeals, appellate decrees,  appeals from  orders, general provisions relating to  appeals and  also appeals to the Supreme Court. S. 104  of the  Code provides  for appeals  from orders  and clearly stipulates  that an appeal shall lie from the orders mentioned therein  and save  as otherwise expressly provided in the  body of the Code or by any law for the time being in force, from  no other  order. Order 43 which is attracted by S. 104 of the Code clearly provides that an appeal shall lie from the  orders mentioned  in rule  1 of  o. 43  under  the provisions of  S. 104  and the  orders referred  to  therein particularly in (q), (r) and (s) clearly 275 indicate that  the order in question is an appealable order. As I have earlier observed that an appeal is a creature of a statute and  the right  to appeal  is only  enjoyed, if  law confers any right. The Code of Civil Procedure clearly makes the order in question an appealable one. The legislature has thought it  fit to  confer a right on the litigant to prefer an appeal  in respect  of the  orders mentioned in S. 104 of the Code read with order 43 thereof. A Court will be slow to deprive a  litigant of  the statutory  right merely  on  the ground that  the order  in question  has been  passed  by  a learned Judge on the original side of the High Court. It may further be  pointed out  that S.  104 which  makes the order under appeal  and also  various  other  orders  referred  to therein appealable  under the  Code, recognises  that  apart from the  order made  appealable under the Code there may be other orders  appealable by  any law  for the  time being in force and  further provides that no appeal will lie from any orders other  than the orders expressly provided in the body of the  Code or  by any  other law  in force.  The right  of appeal against  a judgment  of a learned single Judge on the original side  under cl. 15 of the Letters Patent is a right conferred by  any other law in force. It may be pertinent to point out  in this  connection that by incorporating S. 100A in the  Code (by  the Amending  Act 104 of 1976, S. 38), the Legislature has  thought it  fit to interfere with the right of appeal  in certain  cases, even  if such  right had  been conferred by Letters Patent or any other law.      This right of appeal under cl. 15 of the Letters Patent is in  no way curtailed or affected by S. 104 of the Code of Civil Procedure  and S.  104 seeks  to confer  the right  of preferring an  appeal  in  respect  of  the  various  orders mentioned  therein.   In  other  words,  by  virtue  of  the provisions contained  in S.  104(1), a  litigant enjoys  the right of  preferring an  appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under  cl. 15 of the Letters Patent as a judgment and the  right of  appeal under cl. 15 of the Letters Patent remains clearly unimpaired. In this connection the following observations of  this Court in the case of Union of India v. Mohindra Supply  Co. (supra)  at  p.  511  may  be  usefully quoted:-           "The intention  of the legislature in enacting the      sub-s.(1) of  S. 104  is clear:  the  right  to  appeal      conferred by  any other law for the time being in force      is expressly  preserved This intention is emphasised by      s. 4 which provides that in the absence of any specific      provision to the contrary 276      nothing in  the Code  is intended to limit or otherwise      affect any  special jurisdiction  or power conferred by      or under any other law for the time being in force. The      right to appeal against judgments (which did not amount

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    to decrees  under the Letters Patent, was therefore not      affected by  s. 104(1)  of the Code of Civil Procedure,      1908". It will  be apt  in this connection to bear in mind the view expressed by  the Privy  Council in  the case of Mt. Savitri Thakurain v.  Savi and  Anr.,(1) the Judicial Committee held at p. 82-83 as follows:-           "The orders  and  rules  under  the  Code  are  by      Section 121  given the  same affect as if they had been      enacted in  the Code,  and therefore order 41, Rule 10,      is one  of the  pro visions  of the Code. It applies to      appeals  in  the  High  Court,  including  the  present      appeal, unless any particular section of the Act can be      found to  exclude it.  Section 104(1)  is  the  section      relied on  for this  purpose It  prescribes what orders      shall be  appealable and enumerates them, and among the      orders enumerated  there is  not included such an order      as that  made by  Choudhary, J. Out of the operation of      Section 104  there  are,  however,  expressly  excepted      matters, which  are otherwise expressly provided for in      the body  of the  Code. In order to appreciate the full      effect of  section 104  it should  be compared with the      corresponding section  of the Act of 1882, Section 588.      The earlier  section enacted that appeals should lie in      certain cases,  which it enumerated, ’and from no other      such orders.’  This raised this question nearly whether      an appeal, expressly given by Section 15 of the Letters      Patent and  not expressly referred to in Section 588 of      the Code  of 1882,  could be  taken away by the general      words of  the section 581 and in the wording of section      104 of the Act of 1908 is significant for it runs,                ’and    same     as    otherwise    expressly           provided....by any  law  for  the  time  being  in           force, from the other orders’.           Section 15  of the  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 277      Court in its original ordinary jurisdiction, is thereby      saved. Thus  regulations duly  made by orders and Rules      under the  Code of Civil Procedure, 1908 are applicable      to  the  jurisdiction  exercisable  under  the  Letters      Patent, except  that they  do not  restrict the express      Letters Patent appeal." The effect  of sub-section (1) S. 104, therefore, is clearly not to  affect any  existing special  or local  law  or  any special jurisdiction  or power conferred and to preserve any existing right  of appeal  whether under  any statute or the Letters Patent  and to  create a further right of preferring an appeal in respect of the orders enumerated therein. C      In the  case of  Mathura Sundari Dassi v. Haran Chandra Shaha and  Ors. (supra),  Sanderson, C.J. Observed at p. 362 as follows:           "I would  be very  loth to hold that this order is      not a  ’judgment’ within  the meaning  of cl. 15 of the      Letters Patent,  but it is not necessary in my judgment      to give  a definite opinion upon it because I think, on      the second point, the Code does give a right of appeal.      By clause  14 of  the Letters  Patent it is provided as      follows: ’And we do further ordain and declare that all      the provisions  of these our Letters Patent are subject      to the  legislative powers  of the  Governor-General in      Council, exercised  at  meetings  for  the  purpose  of      making law and regulations’. By the terms of S. 117 the

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    code is  made applicable  to the High Court, and o. 43.      R. 1,  gives a  right of  appeal in the very case under      discussion. But it is said that this Code and the rules      made under  it do not apply to an appeal from a learned      Judge of the High Court. I cannot follow that argument.      It is  part of  the defendant’s  case that  O.9,  R.  8      applies. That  order is  in effect  a part of the Civil      Procedure  Code.  It  seems  to  me  strange  that  the      plaintiff should  be subjected  to O.9,  R. 8,  and  be      liable  to   have  his   suit  dismissed  for  want  of      appearance, yet  when he  has had  his  suit  dismissed      under one of the rules of the Code and wants to call in      aid another  of the  rules which-  when his application      for reinstatement has been refused gives him a right of      appeal  against  that  refusal,  he  is  met  with  the      argument that  he cannot  call in aid that rule because      there is  no appeal  from the learned Judge of the High      Court under the Civil Procedure Code. I think this 278      is not  a true view or a reasonable construction to put      upon the  Code and  the Rules  made  under  it.  In  my      judgment, the  Code and  the rules  do  apply  and  the      plaintiff has a right of appeal." Sri Aushotosh  Mookherji in his judgment in the same case at pp. 364-365 held as follows:           "The question,  consequently, arises whether O,43,      r. 1,  clause (c),  is applicable  to an order under o.      IX, r.  9, made by a Judge on the original side of this      Court.           On behalf  of the  appellant,  reliance  has  been      placed upon  S. 117  of the  Code which  lays down that      ’save as  provided in  this part  or in  part X  or  in      rules, the High Court established under the Indian High      Courts Act, 1961.’ The only provision in Part IX, which      may have  any possible  hearing is that contained in S.      120  which   obviously  does   not  touch  the  present      question. The  provision in Part X, which deal with the      matter, is  contained in  S. 129:  this also  does  not      militate against  the contention  of the appellant. The      term ’rule’,  which finds a place in S. 117, is defined      in clause  18 of  S. 2  of the  Code to  mean  ’a  rule      contained in the first Schedule or made under S. 122 or      S. 125’.  Our attention  has not been drawn to any such      rule which makes o. 43, R. 1, Clause (e), inapplicable.      On the  other hand  O.49,  R.  3,  which  excludes  the      operation  of   other  rules,   lends  support  to  the      contention of  the appellant  that o. 43, r. 1, cl. (c)      is applicable to the present appeal.           But  it   has  been   argued  on   behalf  of  the      respondents, on  the authority  of the  decision of the      Judicial Committee in Hurriah Chandra Choudhary v. Kali      Sudari Dasi that the Civil Procedure Code, in so far as      it provides  for appeals,  does not  apply to an appeal      preferred from  a decision of one Judge of a High Court      to the  Full Court.  The true effect of the decision of      the Judicial  Committee was considered by this Court in      Toolses Money  Dassesv. Sudevi  Dasses (1890)  25  Cal.      361) but  it is not necessary for my present purpose to      determine its  hearing in all its implications, because      in my  opinion, the  law has been substantially altered      since that decision was pronounced. S. 104 279      Of the Code of 1908 is materially different from S. 588      of Code  of 1882.  It provides that an appeal shall lie      from the  orders mentioned  in the first clause of that

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    section, and  save as  otherwise expressly  provided in      the body  of the  Code or by any law for the time being      in force,  from no  other orders’. The effect of S. 104      is thus,  not to  take away  a right of appeal given by      clause IS  of the Letters Patent, but to create a right      of appeal  in cases even where clause 15 of the Letters      Patent  is   not  applicable.   I  may   here   observe      perethically that in the case of Tooles Money Dasses v.      Sudevi Dasses.  Princep J. felt pressed by the argument      that if  an appeal  was deemed  to have been allowed by      the Code of Civil Procedure, there was no provision for      the Constitution  of a  Court to  which such  an  award      might be  preferred. S.  106 of the Code, however, lays      down that  "where an  appeal from any order is allowed,      it shall  lie to the Court to which an appeal would lie      from the  decree in  the suit  in which  such order was      made.’ Consequently,  where a  right of appeal has been      so given,  it would  be  the  duty  of  this  Court  to      constitute a  Court of Appeal under S. 13 of the Indian      High Courts Act. 1 hold accordingly that this appeal is      competent under  cl. tc),  R. 1,  o. 43  of  the  Civil      Procedure Code."      In the  case of Lea Badin v. Upendra Mohan Roy Chaudhry (supra), a Division Bench of the Calcutta High Court held at p. 37 as follows:           "But there  is another  and far  simpler ground on      which it  must he held that an appeal is competent. The      order in  the present  case is one for which a right of      appeal ii provided in cl. (s). R. 1, o. 43 of the Code.      Under the  pre sent  Code (Act  5 of 1908) it cannot be      contended that  the Code and the Rules made under it do      not apply to an appeal from a learned Judge of the High      Court; such a contention was elaborately dealt with and      repelled in the case of 1918 Cal. 361(4)".      On a  plain reading  of the  various provisions  of the Code  and  on  a  proper  construction  thereof  I  have  no hesitation in  holding that  S. 104  of the  Code  of  Civil Procedure applies to the original side of the High Court and the order in question is clearly appealable by virtue of the provisions contained in S. 104(1) read with order 280 43 thereof.  The authorities  to which  I have referred also lend support  to the view that I have taken. A contrary view expressed by  any High  Court must necessarily be considered to be  wrong and  incorrect. The  leading  decision  of  the Bombay High  Court in  the case  of Baman  Rao Kulkarini  v. Naresh  Vishnu   Joshi  (supra)  proceeds  on  an  incorrect appreciation and  interpretation of  the provisions  of  the Code. As  I have  earlier discussed, there is no question of S. 104  of the Code of Civil Procedure purporting to control of cl.  15 of the Letters Patent. It may, on the other hand, be said  that S.  104 of the Code seeks to supplement cl. 15 of the Letters Patent by conferring a right of appeal in the case of  various orders  mentioned in  sub-section (1) of S. 104, which  brings in  its purview  S. 43  of the  Code. The further approach of the Bombay High Court in that case as to subordination of a judge of the High Court sitting singly on the original  side, is  fallacious and  untenable. An appeal under cl.  15 of  the Letters  Patent from  a judge  sitting singly on  the original  side  of  the  High  Court  becomes competent to  a division  Bench and  a learned judge against whose judgment  the appeal  is  preferred  does  not  become subordinate to  the High Court. There is in fact no question of subordination at all.      The observations  of the Judicial Committee in the case

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of Hurish  Chandra Choudhary  v. Kali Sudari Dasi (supra) at p. 17  relied on  by the learned counsel for the Respondents are of no material assistance to them. I have already quoted the said  observations of  the Judicial  Committee. The said observations made in relation to the provisions of S. 588 of the Act 10 of 1877 only go to lay down that the said section which has the affect of restricting certain appeals does not have the affect of restricting the right of appeal under cl. 15 of  the Letters Patent and does not apply to a case where an appeal  is one under cl. 15 of the Letters Patent. It may further be  noted that  the law  has since the said decision been substantially  altered and  S. 104 of the Code of Civil Procedure of 1908 is materially different from S. 588 of the Code of  1882. This  decision of  the Judicial Committee has already come up for consideration by a division Bench of the Calcutta High  Court in  the Mathura  Sudari Dassi  v. Haran Chandra Shaha (supra).      I,  therefore,  accept  the  first  contention  of  Mr. Sorabjee that  the order  in question is appealable under S. 104 (1)  of the Code read with order 43 thereof and the said provisions of  the Code  apply to  the original  side of the Bombay High Court and the appeal preferred 281 from the  order of  the learned single judge to the Division Bench  of   A  the  Bombay  High  Court  was  competent  and maintainable.      In view  of my  accepting the  first contention  of Mr. Sorabjee it  does not  really become  necessary  for  me  to consider the  other contention  raised by  him, namely, that the order  in question  is also  appealable as  a ’judgment’ under cl.  15 of  the Letters Patent. As elaborate arguments have been advanced on this aspect and various decisions have been cited,  my learned  brother Fazal  Ali, J.  has in  his judgment also  considered this  aspect and  has  dealt  with various cases, in deference to the submissions made from the bar that  this Court  should lay  down guidelines as to what will constitute  a ’judgment’  within the meaning of cl. l S of the Letters Patent.      An order  which is  appealable under  the Code or under any other  statute becomes appealable as the statute confers a right  on the litigant to prefer an appeal against such an order. Such  an order  may  or  may  not  be  appealable  as ’judgment’ under  cl. 15  of the  Letters Patent.  An  order which may  be appealable  under cl. IS of the Letters Patent as a ’judgment’ becomes appealable as Letters Patent confers on the  litigant a  right of appeal against such an order as ’judgment’. An order appealable under the Letters Patent may or may  not be  appealable under the Code. A right of appeal is a  creature of  Statute. A  litigant  does  not  have  an inherent right  to prefer  an appeal against an order unless such a  right is  conferred on  the litigant by law. Certain orders become  appealable under  the Code, as the Code makes such orders appealable. Other Statutes may confer a right of appeal in  respect of  any  order  under  the  Statute.  The Letters Patent  by cl.  15 also confers a right to prefer an appeal against  a ’judgment’.  An order  which satisfies the requirements of  ’judgment’ within  the meaning  of  cl.  15 becomes appealable under the Letters Patent. What kind of an order will constitute a ’judgment’ within the meaning of cl. 15 of  the Letters Patent and will become appealable as such much necessarily  depend on  the facts  and circumstances of each case  and on  the nature  and character  of  the  order passed. The  question whether a particular order constitutes a judgment  within the  meaning of  cl. 15  of  the  Letters Patent to  be appealable  under the  provisions thereof  has

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come up  for consideration  before the  various Courts  in a number of  decision. Very  many decisions have been cited in the present case and they have been considered by my learned brother, Fazal Ali, J. in his judgment. The question indeed, is not  free from difficulties and divergent views have been expressed by different Courts and by various learned 282 Judges. This  Court had  also the occasion to consider as to what may  constitute a judgment within the meaning of cl. 15 of the  Letters Patent  in certain  cases. In  the  case  of Shanti Kumar  R. Canji v. The Home Insurance Co. Of New York (Supra) this Court referring to the earlier decision of this Court in  the case  of Asrumati  Debi v.  Kumar Rupendra Deb Rajkot &  ors (supra),  observed at  p. 550-"This  Court  in Asrumati Debi’s case said that a judgment within the meaning of cl.  15 of  the Letters  Patent would have to satisfy two tests. First,  the judgment  must be the final pronouncement which puts  an end  to the  proceedings as  far as the Court dealing with  it is  concerned. Second,  the  judgment  must involve the  determination of some right or liability though it may  not be  necessary that there must be  a decision on merits". This  Court further observed at p. 555-"The view of the High  Courts of  Calcutta and  Madras with regard to the meaning of  ’judgment’ are  with respect  preferred  to  the meaning of  ’judgment’ given  by the Rangoon and Nagpur High Court." This  Court also  held at  p.  556-"In  finding  out whether the  order is a ’judgment’ within the meaning of cl. IS of  the Letters  Patent it  has to  be found out that the order affects  the merits  of the action between the parties by  determining  some  right  or  liability.  The  right  or liability has  to be found out by a Court. The nature of the order will have to be examined in order to ascertain whether there has  been a  determination of any right or liability." In my  opinion, an  exhaustive or a comprehensive definition of ’judgment’ as contemplated in ch IS of the Letters Patent cannot be  properly given  and it  will be  wise to remember that in the Letters Patent itself, there is no definition of the word  ’judgment’. The  expression has  necessarily to be construed and  interpreted in  each particular  case. It is, however, safe  to say  that if  any order  has the effect of finally determining  any controversy  forming  the  subject- matter of  the suit  itself or  any part thereof or the same affects the question of Court’s jurisdiction or the question of  limitation,  such  an  order  will  normally  constitute ’judgment’ within  the meaning  of cl.  IS  of  the  Letters Patent. I  must not,  however, be understood to say that any other kind  of order  may not  become  judgment  within  the meaning of  cl. IS  of the  Letters Patent  to be appealable under the  provisions thereof.  As already stated, it is not necessary to decide in the present case whether the order in question would  be appealable  under cl.  IS of  the Letters Patent  as   judgment;  and   I,  therefore,   refrain  from expressing any opinion on this question. P.B. R. 283