L.H. Jenkins, K.C.I.E. C.J.
1. In October, 1902, this Bench dismissed a petition, presented under the Indian Companies (Memorandum of Association) Act (XII of 1895), on the ground that, no such resolution as the law requires has been passed. From this order the Company desires to appeal to His Majesty in Council.
2. In opposition to the application it was urged before us by Mr. Branson, first, that no appeal lay under the Memorandum of Association Act or under the Companies Act: secondly, that the pecuniary test had not been satisfied; and thirdly, that there was no substantial question of law.
3. To the first of these objections the answer appears to me to be that if there has been a decree, then there, is a right of appeal under the Code of Civil Procedure, subject to the conditions thereby prescribed. Section 594 of the Code, which is in the chapter regulating appeals to the King in Council, provides that in that 'chapter, unless there be something repugnant in the subject or context, the expression 'decree' includes also judgment and order.' It seems to me clear that our order of October last falls within this definition of a 'decree.'
4. The other objections are, no doubt, of weight where they are applicable, but here we have to consider whether the case is not a fit one for appeal to the King in Council within the meaning of Clause (b) of Section 595. The only question, therefore, is whether we ought to give in this case a certificate of fitness.
5. It is perfectly true that it cannot with precision be said that the amount or value of the subject-matter of the suit is Rs. 10,00.0 or upwards, or that the amount or value of the dispute on appeal is of that sum or upwards; but the reason why that cannot be said is, because the value of the question at issue between the parties is one to which it is impossible to give a numerical expression. It is, however, obvious that the financial and commercial position of the Company may be seriously affected by the questions at issue, and having regard to that and to the importance to Indian Companies generally that these rights should be precisely defined in relation to the point that has arisen in this case, I think that we ought to certify that the case is a fib one for appeal to His Majesty in Council, and we accordingly do so certify.
6. I have dealt with the case under the Code, because I think that by virtue of Section 647 of the Code the present proceedings come within the provisions of Chapter XLV.