Satyanarayana Raju, Offg. C.J.
(1) The question for decision is whether the following order made by our learned brother Gopalrao Ekbote J., is a 'judgment' within the meaning of Cl. 15 of the Letters Patent : -
'Post Appeal No. 21 of 1960 along with Appeal No. 188 of 1959 before a Bench'.
Clause 15 reads as follows : -
'And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed 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, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of S. 107 of the Government of India Act or in the exercise of criminal jurisdiction ) of one Judge of the said High Court or one judge of any Division Court, pursuant to S. 108 of 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 S. 108 of the Government of India Act made (on or after the 1st 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 : but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our Heirs or Successors in our or Their Privy Council, as hereinafter provided.'
In Tuljaram Rao v. Alagappa Chettiar, ILR 35 Mad 1 (FB) a Full Bench of the Madras a High Court considered the precise scope of the term 'judgment' used in Cl. 15. The learned Chief Justice, Sir Arnold White, who spoke for the Full Bench, formulated a definition of 'judgment' in a comprehensive manner.
(2) 'The test seems to me' thus observed the learned Chief Justice, 'to be not what is the form of the adjudication, but what is the effect on the suit or proceeding in which it is made. If its effect, whatever the form may be, and whatever may be the nature of the application on which it is made, is 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.'
(3) This decision was rendered in the year 1910 and for more than half a century it has ruled the law in Madras.
(4) In Khatizan v. Sonairam, AIR 1920 Cal 797 (2) the High Court of Calcutta held that an order for transfer of a suit made under Cl. 13 of the Letters Patent was not a 'judgment' within the meaning of Cl. 15. The learned Judges, Mookerjee, A. C. J. , and Fletcher J. , relied for this view upon the pronouncement of Sir Richard Couch, C. J. in the case of Justice of the Peace for Calcutta v. Oriental Gas Co. , 8 Beng LR 433 where the learned Chief Justice said as follows :
'We think that 'judgment' in Cl. 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.'
(5) On the other hand, a Full Bench of the Rangoon High Court in Dayabhai Jiwandass v. Murugappa Chettiyar, AIR 1935 Rang 267 took a view altogether different from that of the Calcutta and Madras High Courts as regards the meaning of the word 'judgment' in Cl. 13 of the Rangoon Letters Patent, which corresponds to Cl. 15 of the Letters Patent of the Calcutta and Madras High Courts. It was held by the Full Bench of the Rangoon High Court that 'the term 'judgment' in the Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined 'and that' in other words, a 'judgment' is not what is defined in 2 (9), Civil Procedure Code, as being the statement given by the Judge of the grounds of a decree or order, but is a judgment in its final and definitive sense embodying a decree.'
(6) In Asrumati Debi v. Rupendra Deb, : 4SCR1159 their Lordships of the Supreme Court, while noticing the divergence of judicial opinion on the question, left the matter open for future decision. They however, approved the decision of the Full Bench of the Rangoon High Court and held that 'an order for transfer of a suit made under Cl. 13 of the Letters Patent, is not a judgment within the meaning of Cl. 15 and therefore is not applicable.' This conclusion was rested on the ground that the order neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground.
(7) The order in the present case neither affects the merits of the controversy between the parties in the appeal itself nor does it terminate or dispose of the appeal on any ground. Judged by any test, therefore, the order in question is not a judgment within the meaning of Cl. 15 of the Letters Patent. We hold that this appeal is not maintainable ; and it is accordingly rejected.
JH/ MVJ/ D. V. C.
(8) Order accordingly.