(1) On the 19th August, 1958, the appellants had filed a suit on the original side of this High Court and in this suit they claimed a certain amount as being due and payable to them by the respondents defendants. The writ summons was served on the defendants on 3rd October, 1958. Thereafter the suit was adjourned several times in order to enable the defendants to file a written statement. The suit then came up for hearing on 17th December, 1958. On that date the defendants again applied for adjournment of the hearing. That application was rejected. The defendants' counsel then asked for permission to withdraw from the case and this was granted. The plaintiffs led some evidence and thereafter a decree was passed against the defendants. On 9th January, 1959, the defendants took out a notice of motion for setting aside the decree passed against them. This was opposed by the plaintiffs. On 16th January, 1959, Mr. Justice K. K. Desai made an order, by which he made the notice of motion absolute on certain conditions. He set aside the decree passed against the defendants. Against the order made by him an appeal was filed under clause 15 of the Letters Patent. When the appeal came up for hearing, a preliminary objection was raised that the appeal was not competent. It was contended that an order setting aside a decree is not a judgment within the meaning of clause 15 of the Letters Patent and that consequently no appeal lies against such an order. The Division Bench hearing the appeal decided to refer the following question to the Full Bench:
'Whether the order of a single Judge on the Original side of the High Court setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code or purporting to be one thereunder, amounts to a judgment within the meaning of that expression occurring in clauses 15 of the Letters Patent and is appealable?'
There has been considerable divergence of judicial opinion in regard to the meaning of the word 'judgment' used in clause 15 of the Letters Patent. The different view held on this point were noticed by the Supreme Court in Asrumati Debi v. Rupendra Deb Rajkot : 4SCR1159 , but the Supreme Court did not express any final opinion in the matter. In Justices of the Peace for Calcutta v. Oriental Gas Co., 8 Beng LR 433. Couch C. J., defined the word 'judgment' as follows:
'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 then 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.'
As observed in : 4SCR1159 ,
'the judgment must be the final pronouncement, which puts an end to the proceeding sop far as the Court dealing with it is concerned.'
It has also been held in several cases that an order, which is merely procedural in character or which can only be regarded as a step in the progress of a suit, is not a judgment. In this Court the definition given by Couch, C. J., has always been followed, see Sonbai v. Ahmedbhai, 9 Bom HCR 398, Miya Mahomed v. Zorabi, 11 Bom LR 241 and Salemahomed v. Mahomed Taher : AIR1958Bom210 . We feel that we must adhere to the practice, which has been followed so far, and apply the same definition in the present case.
(2) An application or a notice of motion taken out to set aside a decree passed in a suit is not a proceeding in the suit. It is not an interlocutory application made during the pendency of the suit . it is a separate proceeding which is taken after the suit has been disposed of and has come to an end by the decree being passed. The proceeding terminates when an order setting aside the decree is made. Such an order would therefore satisfy one of the requirements for its being considered to be a judgment.
(3) The material question, however, to be considered is whether such an order affects the merits of the question between the parties. The result of the order no doubt is that the plaintiff is deprived of a valuable right, which had accrued to him under the decree which had been passed in his favour. It also relieves the defendant of his liability under that decree. But the order does not decide any of the merits in controversy in the suit. In a proceeding to set aside a decree, the only question which the Court is called upon to consider is whether sufficient cause has been shown for the decree being set aside and the suit being restored. In such a proceeding the Court is not required to and does not decide any question arising in the suit. When, therefore, a decree is set aside, there is no determination of the questions in controversy between the parties. All the matters are left open for a fresh adjudication. The right of the plaintiff to have his claim determined by a Court is not affected in any way Similarly, the defendant's liability in respect of such a claim is not affected, but remains to be adjudicated upon. The questions in dispute between the parties are, therefore, not determined by an order setting aside an ex parte decree. Such an order is not therefore, in our opinion, a judgment within the meaning of clause 15 of the Letters Patent.
(4) This is also the view, which has been taken by the Calcutta High Court in several cases. In Maharaj Kishore Khanna v. Kiran Shashi Dasi, ILR 49 Cal 616: AIR 1922 Cal 407, it was held, following an earlier unreported decision of that Court, that no appeal lies against an order made under Order 9, Rule 9, Civil Procedure Code restoring a suit. The same view was taken in regard to an order made under Order 9 Rule 13 setting aside an ex parte decree in Baldeodas v. Shubchurndas, : AIR1926Cal327 . In his judgment in this case Sanderson, C. J., observed:
'The result of the learned Judge's order is that the merits of the questions between the parties in the suit have not been decided. On the contrary the result is that the suit has been restored and the matters in dispute and the question whether the defendants are liable for the amount claimed have yet to be decided.'
Both these decisions were followed in Tulsiram v. Sitaram : AIR1959Cal389 .
(5) No decision has been cited before us, in which a contrary view has been taken that an order setting aside a decree either under Order 9 Rule 9 or under Order 9 Rule 13 is a 'judgment'. Mr. Cooper on behalf of the plaintiffs has relied on the decision of the Calcutta High Court in Chandi Charan v. Jnanendranath, AIR 1919 Cal 667, in which it was held that an order made by a single Judge setting aside a decree passed by a District Judge and remanding the case for rehearing of the appeal on merits, was a judgment, as 'the effect of the decision was to terminate the appeal in the Court and also to vacate the decree made by the District Judge' and also because 'a decree had been drawn up in the High Court to give effect to this decision.' Mr. Cooper relied on the observations in the judgment in this case that the expression 'some right or liability' in the definition of Couch, C. J., is not restricted to the right in controversy in the suit itself. If these observations are read along with the rest of the judgment, it would be clear that what the learned Judges wanted to convey was that if the right in the controversy in appeal is decided and the appeal terminates with a decree being drawn up to give effect to the decision in appeal, the decision in appeal would be a judgment within the meaning of the Letters Patent. Such a decision, which terminates the appeal and results in a decree being passed, stands on quite a different footing from an order setting aside an ex parte decree. A somewhat different view in regard to an order of remand was taken by the Nagpur High Court in Manohar v. Baliram, ILR 1952 Nag 471: AIR 1952 Nag 357, in which the decision of the majority of the Judges was that when a remand order by a single Judge of the High Court sitting in second appeal merely remits an issue for trial or orders some evidence to be taken but does not decide the controversy either wholly or partially, the remand order cannot be treated as a judgment within the meaning of clause 10 of the Letters Patent of the Nagpur High Court; but where the Court sets aside a decree and making a binding order on the merits of the controversy remits the case for trial according to its decision, the order must be treated as a judgment within the meaning of the clause. It is not necessary for us in this case to express any opinion as to whether an order of remand is a judgment, for such an order is of quite a different nature than an order setting aside an ex parte decree either under Order 9 Rule 9 or under Order 9 Rule 13.
(6) In Maria Flaviana Almeida v. Ramchandra Asavle, 40 Bom LR 658 : AIR 1938 Bom 408, it was decided that no appeal lies under Clause 15 of the Letters Patent from an order setting aside an abatement of a suit under Order 22 Rule 9 Civil Procedure Code, because such an order does not affect the merits of the dispute between the parties. That view is, in our opinion, correct. We may, however, add that we do not agree with the other reason given in that case, viz., that an anomaly would arise, if an order setting aside an abatement made by a Judge on the Original Side is held to be appealable, even though such an order, if made by any other Court, would not be appealable under clause (k) in Order 43 Rule 1. There are several orders referred to in this rule, which are appealable, but against which no appeal would lie, if they were made by a Judge on the Original Side. Similarly an appeal lies against certain interim orders made by a Judge on the Original Side, but which are not appealable under the Code.
(7) Various other authorities have been cited before us in regard to the manner in which the above definition of Couch, C. J., has been applied in different cases. These cases are not easy to reconcile. No useful purpose will be served by our attempting to do so, nor is this necessary for the purposes of deciding the question, which has been referred to us. We do not, therefore, consider it necessary to refer to these cases. In our opinion, therefore, an order setting aside a decree under Order 9 Rule 13 is not a judgment within the meaning of clause 15 of the Letters Patent. It does not make any difference whether the order was made under this rule or purports to have been made under this rule. The reply to the question referred to the Full Bench will therefore be in the negative.
(8) Question answered in negative.