Bennet, Ag. C.J.
1. This is a Letters Patent Appeal brought by one Lakshmi Narain against what is styled the order of a learned single Judge. The order in question is one refusing to set aside the abatement of a second appeal. The learned single Judge has not declared that the case is a fit one for Letters Patent appeal under Clause 10 of the Letters Patent of this High Court. The question therefore arises whether such declaration of a learned Judge is or is not necessary. For the appellant learned Counsel contended two points : (1) that the permission was not necessary and (2) that it had already been held by the learned Application Judge that no permission was necessary. Now in the case of a. Letters Patent Appeal, it is for the Letters Patent Bench to decide whether notice should issue or not and this appeal is before us for this purpose. When the application was filed the office noted: 'Leave to appeal in Letters Patent has neither been granted nor refused.' On this the learned Application Judge made an order:
This Letters Patent Appeal is directed against an order passed by a learned Judge of this Court-refusing to set aside the abatement of appeal. Under these circumstances no permission of the learned Judge to file the Letters Patent appeal was necessary Office to proceed. The question whether the order can be made the subject of a Letters Patent Appeal is for the Letters Patent Appeal. Bench to decide.
2. We understand that this order was not a judicial order deciding the point because, as already observed, the learned Application Judge had no such jurisdiction, nor in our opinion did he purport to exercise such jurisdiction because his order does not in any way decide judicially that the appeal, lies. It merely directs the office to proceed and the office proceeded by preparing an order, which was signed by the Registrar, to lay before the Letters Patent Appeal Bench. The point is for this Bench to decide.
3. Now as regards the merits of this question as to whether the permission of the learned single Judge who passed the order was necessary or not, learned Counsel has argued that although the matter was a. second appeal and came before the learned Judge in second appellate jurisdiction, the order of the learned Judge was not passed in second appellate jurisdiction, because it-was not an order deciding the second appeal on the merits. Learned Counsel suggested that it might be considered an order passed in original jurisdiction. Now the Letters Patent in Clause 9 refer to the original, jurisdiction and state that in such original-jurisdiction this Court may withdraw any suit from a subordinate Court and try it. Then follows Clause 10 which is now in question. Later we find Clause 13, referring again to original civil jurisdiction, and Clause 14 dealing with appellate jurisdiction. Clause 15 deals with criminal jurisdiction and Clause 25> with testamentary and intestate jurisdiction and Clause 26 with matrimonial jurisdiction. Now the word 'jurisdiction' in the 1 Letters Patent appears to cover the exercise of all the powers of the Court in a particular jurisdiction in which the case comes before it. The Letters Patent do not contemplate that a case which comes before the Court in one kind of jurisdiction can be Supplemented by the exercise by the Court of any other kind of jurisdiction. It is difficult to see how such a theory can be uphold and learned Counsel admits that he I has no ruling in support of the theory. It appears to us that when a second appeal comes before a Judge of this Court, if it is within his jurisdiction, the jurisdiction which he exorcises is a jurisdiction of second appeal. That jurisdiction covers all the orders which he may make in the course of the second appeal from its commencement to its termination. An application was; made to set aside the abatement and ho refused to grant that application and hold that the appeal had abated. Learned Counsel referred to Sadiq Ali v. Anwar Ali (1923) 10 A.I.R. All. 44 in which it will held in the year 1922 that an appeal would lie under Clause 10 of the Letters Patent from the order of a single Judge rejecting an application, to set aside the abatement of an appeal and, it was held there that the word 'judgment' in Clause 10 would cover such an order. That may be so, but since that ruling in 1922 the Letters Patent wore amended in 1929 and the Letters Patent now require that a judgment.
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.
must have the declaration by the Judge that the case is a fit one for appeal.
4. There does not seem to be any escape From the position that if the order passed in second appeal by the learned single Judge is a 'judgment' within the meaning of Clause 10, Letters Patent, then permission of the learned single Judge is necessary for a Letters Patent Appeal.
5. There are a number of rulings of this High Court subsequent to Sadiq Ali v. Anwar Ali (1923) 10 A.I.R. All. 44 in 1922 and in each of these it was held that no Letters Patent Appeal lay as there was no 'judgment': Khuni Lal Lachhminain v. Narain Das Gopal Das : AIR1935All750 order of transfer of a suit from one Court to another; Shahzadi Begam v. Alakh Nath : AIR1935All620 dismissal of an application under Section 5, Limitation Act, and refusal to extend time to file an appeal. This was a Full Bench ruling and on p. 685 the ruling in Sadiq Ali v. Anwar Ali (1923) 10 A.I.R. All. 44 is discussed and it is pointed out that the case in Tuljaram Row v. Alagappa Chettiar (1912) 35 Mad. 1 on which the Allahabad Bench had relied, was distinguishable. It may therefore be taken that Sadiq Ali v. Anwar Ali (1923) 10 A.I.R. All. 44 is no longer good law: Beni Madho Rao v. Shri Ram 0065/1936 : AIR1937All192 order refusing substitution of the applicant in an appeal.
6. Two rulings prior to 1922 may be noted, where it was held no Letters Patent Appeal lay: Banno Bibi v. Mehdi Husain (1889) 11 All. 375 order refusing application for leave to appeal in forma pauperis; Muhammad Naim-ul lah Khan v. Ihsan-ullah Khan (1892) 14 All. 226 where the order was one directing amendment of a decree passed in appeal. On page 228 Edge C.J. stated:
In my opinion the judgment referred to in Clause 10 of the Letters Patent is the express decision of a Judge of the Court which leads up to and originates an order or decree.
Our brother Tyrrell, in making the order for the amendment of the appellate decree of this Court in the case, was acting in the exercise of the appellate jurisdiction of the Court.
7. On page 232:
It was an order passed by a Judge not on an appeal, but in the matter of an appeal in this Court, and in the exercise of the appellate jurisdiction of this Court.
8. The other four Judges agreed with the learned Chief Justice. The passages quoted are a complete answer to the contention for applicant before us that the order refusing to set aside the abatement was not passed in the exercise of second appellate jurisdiction. We may also refer to an unreported decision of 12th March 1935 on the Letters Patent Appeal of Balmakund Misr v. Shanker Deo Misr, by Sir Shah Sulaiman C.J. and Bennet J. A learned single Judge had dismissed S.A. No. 739 of 1932, same parties, for default of appearance and refused to restore the appeal. No permission was granted for Letters Patent Appeal. The Bench held:
It seems to us that the order passed by the learned Judge was made in the exercise of his appellate jurisdiction and was certainly not made in the exorcise of any original jurisdiction. Without leave therefore no Letters Patent Appeal lies in a case which has come up in appeal before the High Court.
9. We hold that the order of the learned single Judge did not amount to a judgment within the meaning of Clause 10, Letters Patent, and therefore no appeal lies. And further, if the order did amount to a 'judgment' then the permission of the learned, single Judge would have been necessary for an appeal to lie. We dismiss this appeal.