Norman Macleod, Kt., C.J.
1. The petitioners applied to this Court for an order under Section 45 of the Specific Relief Act directing the Chief Co-Revenue Authority to refer a case for the decision of the High Court under Section 51 of the Indian Income Tax Act VII of 1918.
The application was refused and the petitioners now ask us to grant them leave to appeal to the Privy Council. It has been contended for the opponents that no appeal lies from a decision of the Court refusing to make an order under Section 45.
2. Section 48 says :-
Every order under this Chapter shall be executed, and may be appealed from, as if it) were a decree made in the exercise of the ordinary original civil jurisdiction of the High Court.
3. Section 49 says :-
The costs of all applications and orders under this Chapter shall be in the discretion of the High Court.
4. It would certainly appear at first sight that Section 48 only contemplated that orders directing an act to be done or forborne should be appealable as only such orders could be executed.
5. Section 49 also makes a distinction between applications and orders, and it might be inferred that although the costs of an unsuccessful application are within the discretion of the Court, an order for payment of costs would not be an order such as was contemplated by Section 48.
6. On the other hand, it appears from the provisions of Section 104 and Order XLIII, Rule 1, that the decision of a Court refusing an application is called an order. In some cases an appeal will lie from orders refusing relief as well as from orders granting relief, in some only from orders granting relief, and in others only from orders refusing relief, but in Section 104, Clause (g) and in Order XLIII, Rule 1(f)(p)(q)(r) and (8) appeals lie from orders under Section 95 and under certain rules without it being stated whether the orders grant or refuse the relief asked for, and to take one instance it has been held that an appeal will lie from an order refusing to appoint a Receiver though it is not a final order from which an appeal will lie to the Privy Council: Coundi Dutt Jha v. Pudmanund Singh Bahadur IL.R (1895) Cal. 928. In Onslow v. Inland Revenue (1890) 25 Q.B.D. 465 Lord Esher M.R. said:-
In the present case it becomes necessary for us to determine what is meant by an order and a judgment, and to see what is the distinction between them...A ' judgment,' therefore, is a decision obtained in an action, and every other decision is an order.
7. There is therefore- no insuperable difficulty in treating the decisions of the Court in refusing applications under Orders of the first, Schedule of the Civil Procedure Code as orders appealable; nor is there any special reason why a party whose application for an order under Section 45 of the Specific Relief Act has been refused should not be allowed to appeal. In cases Bombay where an application under the section has been made to a single Judge of the Court and refused, appeals have been entertained by a Division Bench without any objection being raised and it seams that the question has only now become of importance because this application having been made in the first instance to a Special Bench, an appeal, if there is one will have to be made to the Privy Council.
The rule will be made absolute.
Costs costs in the appeal.
8. The only ground upon which this application is opposed is that the right of appeal in proceedings under Chapter VIII of the Specific Relief Act is limited to orders contemplated by Section 45 of that Act, and that an order discharging the rule or refusing to make the order prayed for is not within the scope of Section 48 of the Act. The section provides that every order made under this Chapter may be appealed from as if it were a decree made in the exercise of the ordinary original civil jurisdiction of the High Court. The words are comprehensive enough to include an order rejecting the application under the Chapter In interpreting a clause relating to the right of appeal, I do not see any reason why the narrow construction suggested by the learned Advocate General should be accepted.
9. In oases where an order is made by a single Judge in the first instance discharging the rule appeals have been entertained by this Court without any objection under the Letters Patent I may refer to Rustcm J. Irani v.H. Kennedy IL.R (1901) Bom. 396; 3 Bom. L.R. 653. and Haji Ismail v. The Municipal Commissioner of Bombay I.L.R (1903) Bom. 253; 5 Bom. L.R. 1001. as instances on that point.
10. Further, in Zipru v. Hari Supdushet I.L.R (1917) Bom 10: 19 Bom. L.R. 774. after a consideration of the various provisions of the Code of Civil Procedure, this Court held that an order under the particular rule of the Code then under consideration would include a refusal to grant any relief under that rule.
11. It seems to me that under Clause 39 of the Letters Patent read with Section 109 of the Code of Civil Procedure we have to see whether it is a decree or a final order from which an appealliec to this Court.
12. The order in question for the purposes of the appeal is a decree as providedin Section 48; and even if there be any doubt about it, I think that the order in question would be a final order within the meaning of Section 109(b).
13. In this case as there was no appeal to this Court but as the motion was heard by a Division Bench in the first instance, the only condition that requires to be fulfilled under Section 110 relates to the value of the subject-matter and that condition is admittedly satisfied.
14. The applicants are, therefore, entitled to the certificate that the case fulfils the condition as to valuation.
15. I concur in the order proposed.