William Phillips, Kt., Officiating C.J.
1. A preliminary objection is taken to this appeal that no appeal lies because the order appealed against is not a judgment within the meaning of Clause 15 of the Letters Patent. This question was considered by a Full Bench in Tuljaram Row v. Alagappa Chettiar ILR (1910) M 1 : 21 MLJ 1 and it was there laid down that the test to be applied in deciding whether an order is or is not a judgment within the meaning of Clause 15 is as follows:
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.
2. The present order is an order referring back a report of the Official Referee for further consideration and it is contended that the report of an Official Referee is a final order determining the rights of the parties. Mr. Krishnaswami Aiyangar, however, had to concede that a Judge is not precluded from varying or discharging such report and that it cannot take effect until it has received his. imprimatur. It was then argued that the Judge could only alter the report if objections were taken in the manner prescribed in the rules of this Court. Rule 12 of Order 23 distinctly lays down that at the hearing upon a report the Court may at once proceed to give judgment in the case or may make such order as it thinks fit. There is nothing in this rule which would imply that the Court can only hear this report when objection has been taken to it; it stands to reason that when the report is submitted the Court is bound to hear it and to decide whether it shall act in accordance therewith or not whether the parties file objections or not. Until therefore such decision has been arrived at, the report cannot be deemed a final order, for it only receives authoritative power by the order of Court.
3. The only other argument adduced was with reference to the case in Howard v. Wilson ILR (1878) C 231 which is referred to by Sir Arnold White, C.J., in Tuljaram Row v. Alagappa Chettiar ILR (1910) M 1 : 1910 21 MLJ 1 expressing his agreement therewith. That decision related to an order refusing to confirm an award. It has since then been dissented from both in Calcutta and in this Court; but, even apart from that, an award can hardly be said to stand in the same position as the report of an Official Referee. An award is an adjudication by arbitrators who have the power of giving a quasi-judicial decision. The Official Referee has no such power and consequently his report stands on a very much lower footing than an award. In the present case undoubtedly the order of the learned Judge does not put an end to the suit before him, for it will have to come up again on a fresh report from the Official Referee. He will then proceed to deal with it and pass final orders. No such final order having been passed, this appeal does not lie and must be dismissed with costs.
4. Mr. Krishnaswami Aiyangar has tried to persuade us that the combined effect of Rule 1 of Order 24 and Rules 11, 12 and 13 of Order 23 of the Original Side Rules is that, when the Official Referee submits his report in any matter, if no objection is raised by any party, the Judge is bound to accept the report, even though there is in it the most glaring mistake or omission which jumps to the eye at the first glance. The rules themselves do not say explicitly that the Judge must accept the Official Referee's report in such circumstances, and I find it very difficult to believe that, if it had been the intention so to tie the Judge's hands, it would not have been stated in the clearest and plainest manner. To my mind there is no such implication in the rules; and, if there were, if through some oversight the Court had by implication put itself in the power of one of its subordinates bound hand and foot, then I think it would be a matter calling for immediate amendment.
5. But let us suppose that the Official Referee has submitted a report in a suit and the Judge has accepted it either on consideration or, as Mr. Krishnaswami Aiyangar has suggested, on compulsion. What is the result? Under Rule 13 of Order 23 the report will then be conclusive evidence of the facts stated in it. But evidence, even the most conclusive evidence which governs the result of a suit, is not a judgment. If the Judge accepts the report, he accepts the evidence, and he then has to apply it to the issues between the parties and pronounce judgment. If he does not accept the report but refers the matter back to the Official Referee, that is, he declines to pass judgment at that stage and postpones it to a future date, how can we say that he has pronounced judgment within the meaning of Clause 15 of the Letters Patent as interpreted by the Full Bench in Tuljaram Row v. Alagappa Chettiar (1). We might almost as reasonably say that an order of adjournment is a judgment within the meaning of that clause.
6. I agree that this appeal is incompetent and must be dismissed with costs.