1. The question that arises upon the preliminary objection taken by the respondents' advocate to this appeal from the order of Mr. Justice Divatia excusing the delay in filing First Appeal No. 184 of 1938 in this Court, is whether that order is a ' judgment' within the meaning of clause 15 of the Letters Patent. The respondents contend that such an order is but a preliminary step regulating procedure in the appeal and does not affect the merits of the case nor does it determine the rights between the parties, and that what it determines is that the appellant is not debarred from appealing, as in the absence of such an order he might have been so debarred. In other words, it has been contended that Inasmuch as it merely restores the appeal to an appealable condition, the order is not a ' judgment' and, therefore not appealable. On the other hand it is argued for the appellants that by the delay of the respondents a substantial right has accrued to the appellants in this appeal, namely the right to execute the decree without fear of its being challenged, and that therefore the order which deprives them of such a right is a judgment. The word ' judgment' in clause 15 of the Letters Patent has been variously interpreted by the Indian High Courts. In some it has received a restricted interpretation, whilst in others a liberal or a very wide one. Scott C.J. in Miya Mahomed v. Zombi (1909) 11 Bom. L.R. 241 referring to the decisions in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 and in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed : Hadjee Joosub Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. L.R. 91, observed that they have been regarded as leading decisions on this side of the country. In The Justices of the Peace for Calcutta case Couch C.J. remarked (p. 452) : '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 '. The point actually decided was that no appeal lay under that clause from an order directing the issue of a mandamus to the Justices of the Peace at Calcutta to compel them to refer to arbitration a question of compensation, In the case of Hadjee Ismail the same learned Judge observed that where there was an order refusing to set aside an order granting leave to sue to the plaintiff under clause 12 of the Letters Patent, it was not a mere formal order or an order merely regulating the procedure in the suit, but one that had the effect of giving jurisdiction to the Court which it otherwise would not have. The definition in The Justices of the Peace for Calcutta v. The Oriental Gas Company, which has become classical, was referred to with approval in the more recent cases of Almeida v. Ramckandra Asavle (1938) Bom. 704 : 40 Bom. LR. 658 and Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai I.L.R. (1931) 56 Bom. 237 : 34 Bom. L.R. 12.
2. It is interesting to note how the term ' judgment' was interpreted by the Madras High Court. In Tuljaram Row v. Alagappa Chettiar I.L.R. (1910) Mad. 1. White C.J. laid down a test to determine what a judgment is (p. 7):-
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 theappointment of a receiver is a ' judgment' within the meaning of the clause
That is apparently a very much wider definition than the one given in The Justices of the Peace for Calcutta case and in my opinion it is a good working test for determining what a ' judgment' is under clause 15 of the Letters Patent. The criterion of finality of the decision involved in the test gives it the connotation of a decree. In Jeranchod v. Dakore Temple Committee : (1925)27BOMLR872 , p.c their Lordships of the Privy Council observed that the term ' judgment' in clause 39 of the Letters Patent, 1865, means, in civil cases, a decree, and not a judgment in the; ordinary sense. Those provisions are analogous to the provisions of clause 15.
3. The question, therefore, is whether the effect of the order of Divatia J. is to put an end finally to the appeal or proceeding so far as this Court is concerned, or whether the order affects the merits of the proceeding by determining some right or liability. There is no direct authority of this Court on the point. But the matter has come up for decision before the other High Courts. In Brajagopal Ray Burman v. Amar Chandra Bhattacharjee I.L.R. (1928) Cal. 135, where a similar question arose, a bench of three Judges held that no appeal lies from an order excusing delay. There a second appeal was presented out of time, and a rule was obtained by the appellants against the opponents to show cause why the appeal should not be registered. The two Judges composing the bench who heard the rule differed in opinion. The rule was made absolute in accordance with the opinion of the senior Judge. An appeal was taken from, that order under clause 15 of the Letters Patent (which is exactly similar to clause 15 of the Letters Patent of the Bombay High Court), and it was held that the order allowing second appeal to be presented upon the excuse of delay in filing it was not a judgment. Rankin C.J. in delivering the judgment observed as follows (p. 144) :-
On the whole, and not without some doubt, I think that the mere circumstance that an order puts in peril the finality of a decision given in the respondent's favour, does not of itself make that order a ' judgment' within the meaning of clause 15 of the Letters Patent. The same might be said of an order restoring a suit under Order IX, Rule 9, and with much greater reason. The same might be said of any order giving leave to appeal or granting a certificate that a case was a fit one to be taken on appeal. Whether any distinction can logically or practically be maintained between an order setting aside an abatement and an order restoring a suit after dismissal for default may well be doubted. But in the case now before us the order complained of does not set anything aside. It operates merely to declare that the appeal may be entertained.
With extreme respect I agree with that view. That view was adopted by the Madras High Court inAnanthanarayana Aiyar v. Rarichand (1935) 70 M.L.J. 306. It has been pointed out that in a converse case of Ramchandra Gangadkar v. MahadevMoreshvar I.L.R. (1917) 42 Bom. 260 : 20 Bom. L.R. 172, this Court took a different view from the High Court of Calcutta which held in Gobinda Lal Das v. Shiba Das Chatterjee I.L.R. (1906) Cal. 1323 that no appeal lay from an order refusing to enlarge time for filing an appeal or an application. It appears from the reported decision that that view proceeded upon the effect of the order dismissing the appeal. It put an end to the appeal so far as the Court before which it was pending was concerned ; or in other words it debarred the appellant from ever prosecuting the appeal. That is why Mr. Justice Heaton said that the order was very drastic in effect and consequently it was a judgment within the meaning of clause 15 of the Letters Patent. The same thing cannot be said where delay has been excused and permission has been given to proceed with the appeal, for the order merely allows the proceeding or the appeal to go on. It could not, in my opinion, be regarded as a final judgment which could be made the subject of an appeal under clause 15 of the Letters Patent. The decisions in Ibrahimbhai v. Yoosuf Ismailbhai and Jermchod v. Dakore Temple Committee emphasise the distinction between an order which is a step in procedure and allows the rights of the parties further to be adjudicated and an order which does not.
4. It is however urged by Mr. Belavdi for the appellants that there is a distinction between proceedings which arise in suits or appeals and those which are independent and ancillary to the suit, and if a final order in the latter proceedings is passed, it would be a judgment within the meaning of clause 15 of the Letters Patent. He contends that an application to excuse delay is unconnected with the appeal and an independent proceeding, and therefore the order is a judgment. I think that view is not well founded and is not supported by authority. Not a single instance has been cited where Courts have allowed an order excusing delay to be treated as a ' judgment ' under clause 15 of the Letters Patent being an order in an independent proceeding. Cases like Sashiv v. Soondardas : (1930)32BOMLR1647 , where an order refusing to grant permission to sue in forma pauperis was held appealable, do not serve as authority. They are not, in my opinion, inconsistent with the view that where the effect of an order is to deprive the party of a right given to him) by statute and debar him from proceeding further, it would be regarded as a judgment.
5. In my opinion in all cases of this kind the effect of the order has to be decided upon the nature of the facts and circumstances in which it is made. With regard to the present case it is quite clear to me that it is merely a procedural step restoring the appeal to a condition in which the rights of the parties could be decided finally by this Court.
6. Therefore I would uphold the preliminary objection and dismiss the appeal with costs.
7. I agree. The word ' judgment' in clause 15 of the Letters Patent is obviously used in the same sense as the word ' decree' in the Civil Procedure Code and means a decision which affects the merits of a dispute between the parties by determining some right or liability, as stated in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433, Stress has been laid on the fact that ' it must be a decision between the parties which determines some right or liability' and does not relate to a mere matter of procedure or adjective law. An appeal lies' in the case of a judgment which concludes the further progress of a suit, appeal, or proceeding, and not against a judgment or order which allows a suit or proceeding to continue. This principle is exemplified in O. 'XLIII, Rule 1, els. (c) and(d), where, though an appeal is allowed in a case where an application for an order to set aside the dismissal of a suit is rejected under Rule 9 of Order IX, no appeal is allowed from an order which has the opposite effect. Similarly, an appeal is allowed from an order under Rule 13 of Order IX rejecting art application for an order to set aside an ex parte decree, but no appeal is allowed in the case of an order to the contrary. The question as to whether a party should be allowed to sue or appeal in forma pauperis is not one, to my mind, between the contending parties to the suit, and therefore, a case of that description cannot furnish any proper ground to the appellant for hisi argument. In Ibrahimbhai Fazalbyhai v. Yoosuf Ismailbhdi I.L.R. (1931) 56 Bom. 237 : 34 Bom. L.R. 12 an order varying the date of sale was held not to be a judgment from which an appeal could lie. Mr. Justice Rangnekar there remarked; (p. 242) :--
Every interlocutory order would, in a loose sense, affect a right of some of the parties or impose a liability on others. But to hold that if some right, however, unsubstantial it may be, is affected by an interlocutory order made by the Court, the order would be appealable, would, in ray opinion, lead to an absurd position. What is to be looked at in such cases is the substance of the matter and the importance of the order made.
In the present case the order appealed from is one excusing delay in the filing of an appeal. It does not prevent the rights of the parties from being adjudicated upon in the appeal, and hence I agree with the order proposed by my learned brother that no appeal lies in this case.