1. This is a matter which, acting under Section 5 of the Court Fees Act VII of 1870, I have referred to myself to decide, the difference having arisen between the officer whose duty it is to see that any fee is paid and the suitor as to the necessity of payment of the fee.
2. The question is whether the decision of a Judge sitting on the Original Side in a contentious probate suit is a final judgment, so that a memorandum of appeal from it comes under serial No. 35 of Appendix 11 of the Original Side Rules as being from a 'final judgment' or under serial No. 36 as being from 'any other judgment or order'. The nature of the proceedings in contested probate suits is clear from an examination of the rules on the Original Side. By Rule 474, where a caveat had been entered, the petition which had been previously issued by those claiming to be the legal personal representatives to obtain the probate, and the caveat, shall be numbered and registered as a suit, in which the petitioner shall be the plaintiff and the caveator shall be the defendant. Later sections provide that the petition and the caveat are to be taken as the plaint and the. written statement of the defendant respectively, and there are provisions made for the hearing of the matter, and for the payment of costs. It is argued that the decision arrived at by the learned Judge who tried the matter as a suit is not a final judgment, and this argument is based on a passage in Ex parte Chinery (1884) 12 Q.B.D. 342, in the judgment of Cotton, L.J. In that case he had to consider the meaning of the words, 'final judgment' in Section 4 of the Bankruptcy Act, 1883, which ran 'if a creditor has obtained a final judgment against him for any amount, execution whereon has not been stayed, and if a bankruptcy notice has been issued the Court may make a receiving order.' Cotton L.J., observed: 'I think we ought to give to the words final judgment' in this Sub-section their strict and proper meaning, i.e., a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established unless there is something to show an intention to use the words in a more extended sense.' But these words have been explained by Lord Selborne, L.C. in Ex parte Moore: In re Faithfull (1885) 14 Q.B.D. 627 as being expressions to be' taken in connection with the particular facts of the case in relation to which they are used,' and he gave another definition of' final judgment 'to this effect' to constitute an order a final judgment nothing more is necessary than that there should be a proper litis conestatio and a final adjudication between the parties to it on the merits. That was followed in In re Alexander: Ex Parte Alexander (1892) 1 Q.B 216 and in Onslow v. Commissioners of Inland Revenue (1890) 25 Q.B.D. 465 , where Lord Esher, M.R. states the same thing more concisely. He says,' A 'judgment' is a decision obtained in action and every other decision is an order'. In my judgment, the definitions of Lord Selborne and of Lord Esher are those that apply in the proper interpretation of the words in the Appendix to the Original Side Rules. There must be a final decision between the parties to a suit. Here by the rule there was a suit. The petition and the caveat were numbered and registered as a suit. The petitioner was the plaintiff and the caveator was the defendant. It follows, in my judgment, that the decision between those parties was a judgment. That it was final I have not the least doubt. It is worth observing that the appeal from that decision must be under Clause 15 of the Letters Patent, because it is only there that one finds a right of appeal from the Original Side, and that right to appeal is limited to judgments. From this it follows that, if this decision is not a judgment, there is no appeal, and it would indeed be a remarkable thing if no appeal lay from such a decision. Indeed in this case the appellant is driven to contend, that for the purpose of paying court-fees that it is not a judgment at all, but for the purpose of an appeal, it is a judgment.
3. I wish to say one word about the decision of my brother, Coutts Trotter, J. in Mahomed Ishack Sahib v. Mahomed Moideen (1922) 43 M.L.J. 438 . In that case there was an appeal against an order on an application under the Guardian and Wards Act. The learned Judge said 'If any one were asked whether this was a judgment or an order, he would certainly say it was an order and held that it was an order and a final order.' Applying his language I should say, if any one were asked whether this was a judgment or an order, he would certainly say it was a judgment, it being quite different from an order on an application to a court under the Guardian and Wards Act.
4. It was argued in that case that serial No. 35 in Appendix II was intended to include final orders in the word 'Judgment' and the learned Judge held that it did not. The Advocate General in this case wishes it to be understood that he reserves the right to raise that point again hereafter. In the view that I take, it is unnecessary for me to decide it. I only wish to say that I express no opinion on the subject whatever.
5. For these reasons the direction must be that the court fee payable on this Memorandum of Appeal is Rs. 150.