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T.V. Tuljaram Row Vs. M.K.R.V. Alagappa Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1912)ILR35Mad1
AppellantT.V. Tuljaram Row
RespondentM.K.R.V. Alagappa Chettiar
Cases Referred and Maruthamuthu Pillai v. Krishnamachariar I.L.R.
Excerpt:
letters patent, clause 15 - judgment--order of single judge refusing to frame an issue not appealable as a judgment. - - this case does not appear to have been cited with approval in this court, and was expressly disapproved in srimantu raja yarlagadda durga prasada nayadu v. this fact may be a good reason for refusing to exercise the appellate jurisdiction, but as it seems to me, it is no reason for holding that the appellate jurisdiction does not exist. 432, is not, in my opinion, good law. clauses 39 to 42 of the letters patent of 1865 as well as the corresponding clauses of 'the letters patent of 1862 deal with appeals to the privy council. they contemplate an appeal from a final judgment, decree or order as a matter of course, provided certain requirements as to value or.....arnold white, c.j.1. the question we have to determine in this ease turns on the meaning of the word 'judgment' in clause 15 of the letters patent, i find it impossible to reconcile the decisions on the point.2. i do not think the word 'judgment' is used in contradistinction to the worlds 'sentence' or 'order' which immediately follow it. the words 'not being a sentence or order passed or made in any criminal trial,' as it seems to me, were introduced in order to exclude all criminal proceedings from the operation of the section and that it is not to be inferred from the introduction of these words that the legislature intended that the word ' judgment should include all orders in civil proceedings.3. further, i am not prepared to infer, from the fact that in sections 39 and 40 of the.....
Judgment:

Arnold White, C.J.

1. The question we have to determine in this ease turns on the meaning of the word 'judgment' in Clause 15 of the Letters Patent, I find it impossible to reconcile the decisions on the point.

2. I do not think the word 'judgment' is used in contradistinction to the worlds 'sentence' or 'order' which immediately follow it. The words 'not being a sentence or order passed or made in any criminal trial,' as it seems to me, were introduced in order to exclude all criminal proceedings from the operation of the section and that it is not to be inferred from the introduction of these words that the legislature intended that the word ' judgment should include all orders in civil proceedings.

3. Further, I am not prepared to infer, from the fact that in Sections 39 and 40 of the Letters Patent a distinction is drawn between final judgments, decrees or orders, and interlocutory judgments, decrees or orders, that the word ' judgment ' in Section 15 is to be deemed to include any order in any interlocutory proceeding.

4. 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.

5. 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 the appointment of a receiver is a 'judgment' within the meaning of the clause,

6. Speaking generally I think the word 'judgment' means any 'final order, decree or judgment' within the meaning of those words as used in Section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of Section 15 of the Letters Patent, On the other hand I am not prepared to say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 and in Sonbai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398, it must be a decision which effects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding,

7. As regards the authorities I will deal with the Madras cases first. With all respect I think the definition of judgment given by Bittleston, J., in Desouza v. Coles (1868) 3 M.H.C.R. 384 as 'any decision or determination affecting the rights or the interest of any suitor or applicant' is too wide, and I cannot accede to the proposition that it is 'impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from' I agree, however, with the actual decision in the ease which seems to me to satisfy the test which I have ventured to lay down.

8. The order in Somasundaram Chetti v. Administrator-General I.L.R. (1876) Mad. 148 was an order under the Administrator-General's Act giving the Administrator-General commission at a certain rate. I think the order may be regarded as an order which put an end to a proceeding in which the Administrator General claimed commission at a certain rate, and was therefore appealable.

9. I am unable to agree with the decision in R, v. R. I.L.R. (1891) Mad. 88 that an order fixing a date for the hearing of a suit is appealable. This case does not appear to have been cited with approval in this Court, and was expressly disapproved in Srimantu Raja Yarlagadda Durga Prasada Nayadu v. Srimantu Raja Yarlagadda Malliharjuni Prasada Nayadu I.L.R. (1901) Mad. 358 and in Mussa-mut Brij Coomaree v. Ramrick Dass (1901) 5 Calc. W.N. 781.

10. The decisions in Commercial Bank of India, Limited v. Sabju Saheb I.L.R. (1901) Mad. 252 (an order dismissing an application by the assignee of a plaintiff to be brought on the record held appealable and in Vyasachary v. Keshavacharya I.L.R. (1902) Mad. 654 (an order dismissing a petition to receive a sum of money as security for coats of an appeal held appealable) in my opinion satisfy the test I have suggested. I should be prepared to hold that an appeal lay from an order refusing a stay of execution (the application for a stay being an ancillary proceeding) though a contrary view was taken in Srimantu Raja Yarlagadda Durga Prasada Nayudu v. Srimantu Raja Yarlagadda Mallikarjuna Prasada Nayudu I.L.R. (1901) Mad. 358.

11. With all respect I find myself unable to agree with the decisions in Veerabadran Chetty v. Nataraja Desikar I.L.R. (1905) Mad. 28 and in Maruthamuthu Pillai v. Kirishnamachariar I.L.R. (1907) Mad. 143, that an order for evidence to be taken on commission or an order refusing a commission is an appealable order. As regards the latter case I entirely agree with the observation of the learned Judges that the fact that the making of the order was a matter of discretion does not affect the appealability of the order. This fact may be a good reason for refusing to exercise the appellate jurisdiction, but as it seems to me, it is no reason for holding that the appellate jurisdiction does not exist.

12. I am unable to agree with what I understand to be the principle of the decision in Appasarni Pillai v. Somasundra Mudaliar I.L.R. (1903) Mad. 437 and I think that the adjudication based on a refusal to exercise discretion, if the effect of the adjudication is to dispose of the suit so far as the Court making the adjudication is concerned, is appealable. This being my view I must hold though I do so with considerable reluctance that the decision in Chinnasami Mudali v. Arumuga Goundan I.L.R. (1904) Mad. 432, is not, in my opinion, good law.

13. As regards the Calcutta cases I have already referred to The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433, in connection with the grounds of the decision in that case. As regards the actual decision I should feel some difficulty in following it and I should be disposed to hold such an order as appealable. In Hurrish Chunder Chowdhry v. Kali-sundery Debi I.L.R. (1683) Cal. 482, the Privy Council held, on the facts of that case, that an order refusing to transmit for execution an order of the Privy Council was appealable. Their Lordships do not discuss the general question of the meaning of the word 'Judgment.'

14. I am of opinion that an appeal lies from a refusal to confirm an award Howard v. Wilson (I.L.R. 1879) Cal. 231 or a refusal to set aside an award [Toolsee Money Dassee v. Sudevi Dassee I.L.R. (1899) Cal. 861]

15. I think an appeal would lie from an order refusing to extend the time for giving security for costs, as the effect of the order would be to put an end to the appeal. In Kishen Pershad Panday v. Tiluokdhari Lall I.L.R. (1897) Cal. 183, the Calcutta High Court took a different view.] In Gopinath Fati v. Moheshwar Pradhan I.L.R. (1908) Cal. 1096, an order was made setting aside a judgment and a decree and ordering a remand, and this order was held to be appealable. I agree. The learned Judges observe, 'we think, it is a 'judgment' because it disposes of the suit.'

16. As regards the Bombay authorities I may refer to Vaghcji v. Gamaji I.L.R. (1905) Bom. 249 where it was held 'that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file,' Here the adjudication asked for, if made would have disposed of the suit. So also would an order made on an application to revoke a submission to arbitration. I think such an order is appealable, See Atlas Assurance Company, Limited v. Ahmedbhoy Habib-bhoy I.L.R. (1910) Bom. 1.

17. I agree with the view expressed by Garth, C.J., in Ebtahim V. Fuckhrunnissa Begum I.L.R. (1879) Cal. 531, on the point which has been referred to us and I think our answer to the question referred should be in the negative.

Krishnaswami Ayyar, J.

18. In this case the defendant in Original Suit No. 117 of 1909 on the file of the High Court (Original Side) moved upon Judge's summons for certain additional issues before Mr. Justice Wallis. The learned Judge dismissed the summons and the defendant appeals under Clause 15 of the Letters Patent of 1865. The question has been referred to the Full Bench whether the order in this case is a judgment within the meaning of that clause. The meaning of the word 'judgment' has often come up for consideration in this Court and the cases show a considerable diversity of opinion, Apart from the question of the true signification of that word in clautse 15 there has also been considerable difficulty in the application of the definition to the facts of individual cases. It is perhaps, to be regretted that the question .was not set at rest earlier so far as this Court was concerned by the authoritative pronouncement of a Pull Bench. Having regard to the contrariety of opinion it is inevitable, whatever view we may take of the meaning of the term 'judgment, that some decisions of this Court at all events will be found to be at variance with it.

19. What then does the word 'Judgment' mean in Clause 15 of the Letters Patent? In Daniel's 'Chancery Practice,' Volume I, page 625 the following definition occurs. 'A judgment is a sentence or order of the Court, pronounced on bearing and understanding all the points in issue, and determining the right of all the parties to the cause or matter. It is either interlocutory or final.' These judicial pronouncements are known as 'Judgments' at Common law and as 'Decrees' in Chancery. See page 321, introduction to Seton on 'Dacrees.' A more accurate definition is to be found in Black on ' Judgments' at page 2 where the author says: 'We may define a 'Judgment' as the determination or sentence of the law pronounced by competent Judge or court as the result 'of an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal duty or liability does or does not exist.' Again at page 3 'the term which, in equity practice, corresponds to 'judgment' at common law is 'decree.' A 'decree' is a determination or sentence of equity pronounced by a competent Court upon the controversies submitted for decision.' At page 32 the author proceeds to define an interlocutory judgment. 'A 'judgment' which is not final is called ' interlocutory, i.e., an ' interlocutory judgment' is one which determines some preliminary or subordinate point or plea or settles some step, question or default arising in the progress of the cause but does not adjudicate the ultimate rights of the parties or finally put the case out of Court. Thus a judgment or order passed upon any provisional or accessory claim or contention is in general merely ' interlocutory ' though it may finally dispose of that particular matter.' Distinguishing between judgments and orders the learned author says at page 5 'an' order], is the mandate or determination of the Court upon some subsidiary or collateral matter arising in an action, not disposing of the merits but adjudicating a preliminary point or directing some steps in the proceedings.' It is unnecessary to refer to other definitions some of which are collected in Chinnasami Mudali v. Arumuga Goundan I.L.R. (1904) Mad. 432. But these citations are hardly sufficient for defining the meaning of the term 'judgment' in the Letters Patent though they render us substantial assistance in arriving at the exact signification intended by the framers of the Letters Patent, We find the terms judgment, sentence, order, decree and preliminary or interlocutory judgment employed in the Letters Patent. It is necessary to understand the use of the term ' judgment' in Clause 15 in such a manner as to give effect to the several words above noted that are employed in the Letters Patent. When the terms final, preliminary, and interlocutory judgment occur in other parts of the Letters Patent it is only reasonable to assign to the word ' judgment' standing by itself in Clause 15 an interpretation which will cover the various kinds of judgments specifically dealt with in other clauses of the Letters Patent. Clauses 39 to 42 of the Letters Patent of 1865 as well as the corresponding clauses of 'the Letters Patent of 1862 deal with appeals to the Privy Council. They contemplate an appeal from a final judgment, decree or order as a matter of course, provided certain requirements as to value or certificate of fitness are satisfied. An appeal to the same tribunal is allowed from any preliminary or interlocutory decree, judgment, order or sentence with the leave of the Court. If an interlocutory judgment is appealable to the Privy Council with the leave of the Court, it can only be when it is a decision of the High Court on appeal or in its original jurisdiction if the Bench passing the interlocutory judgment is composed of the majority of the Judges of the Court. It would be a strange result to hold that from an interlocutory judgment from the original side leave may be given to appeal to the Privy Council under Section 40 even though it is a pronouncement of a single Judge, there being no appeal to the High Court itself under Clause 15. The proper view therefore to take of the meaning of the word judgment' in Section 15 is to understand it as covering an ' interlocutory or preliminary judgment,' But a preliminary or interlocutory judgment is not the same thing as an interlocutory order And whatever width of interpretation the term ' judgment ' may be capable of it ought not to be so understood as to cover ' interlocutory orders.' It was contended by Mr. Seshagiri Ayyar that as Clause 15 speaks of a ' judgment' not being a ' sentence ' or ' order ' passed and made in a criminal trial that all orders other than those that are made in a criminal trial should be held to be comprised within the term ' judgment.' This argument appears to me to be inadmissible. An order in a criminal trial does not correspond to the interlocutory order in a Civil Cause but ordinarily to an order of discharge or acquittal which terminates in a criminal proceeding in favour of a prisoner as a sentence does the other way. The phrase 'not being a sentence or order passed or made in any Criminal trial' was not in Clause 14 of the Letters Patent of 1862 which corresponded to Clause 15 of the later letters. It appears to have been inserted in Clause 15 of the Letters Patent of 1865 mainly to indicate the exception dot with in Clause 25 later, though it is not confined to a sentence or order in the exercise of Original Criminal Jurisdiction as Clause 25 is.

20. It was suggested in the course of the argument that Act VIII of 1859 which was in force at the time of the issue of the Letters Patent would be a valuable guide to the meaning of the word 'judgment' though the provisions of the Act ware not binding as to what should be held to be appealable judgments. Having < regard to the language of Clause 37 of the original Letters Patent and of the later letters the view appears to have been entertained that the class of appealable judgments must be confined to those that were appealable under the Code of Civil Procedure. Both in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng L.R. 433 and in Sonbai, widow of Fazul Habibhai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398 the opinion was expressed that as Section 363 of Act VIII of 1859 prohibited appeals from interlocutory orders in the course of the suit and the only appeals from orders were under Sections 36, 76, 85, 95 and 119, the word 'judgment' in Section 15 of the Letters Patent should receive a restricted interpretation so as not to allow an appeal in cases where no appeal lay under the Code. This view was obviously open to exception. The rules to be made under Clause 37 for regulating proceedings in civil cases though the court was to be guided as far as possible by the provisions of the Code of Civil Procedure could hardly include a provision regulating the right of appeal already determined by Section 15 and as pointed out by the Full Bench of this Court in Chappan v. Moidin Kutti I.L.R. (1899) Mad. 68, the provisions as to appeals in the Code applies to cases in which appeals lie from one court to another and not from one member of a court to other members of the same court. Having arrived then at the conclusion that the word ' judgment' covers a ' preliminary or interlocutory' judgment as well as a ' final' judgment that it does not include an ' interlocutory' order and that the interpretation is uncontrolled by any provision of the Code of Civil Procedure though having regard to the reference to the Code in Section 37 radical divergence from it is hardly to be expected, we may proceed to further delimit the exact boundaries of the field covered by the term as used in Clause 15.

21. The definitions with which we started will hardly suffice to mark the boundary accurately. There is no doubt that the adjudication of a right or liability which determines a suit or appeal is a judgment. Even a refusal to adjudicate which puts an end to a particular suit or appeal must equally amount to a 'judgment.' This has not always been borne in mind as we shall find later on in dealing with the ease of Chinnasami Mudali v. Arumuga Goundai I.L.R. (1904) Mad. 482, A decision on the merits of the controversy between the parties is not essential to the termination of a suit or appeal. Even though the proceeding is not a suit or appeal as technically understood, but is only what may be called an original petition like an application for a succession certificate or the appointment of a guardian, the pronouncement which terminates the proceeding has the characteristics of a judgment, though there is a formal difference in the designation of the proceeding (see Rule 4 Moffussil Rules of Practice). But the right of liability with reference to which the court adjudicates or declines to do so must be the substantive claim or liability and not as Mr. Sashagiri Ayyar tried to maintain a right to a particular judicial procedure or a detriment suffered in being danied the benefit of a rule of procedure. But I do not think we shall be justified in confining the term 'judgment' to final disposal of suits, appeals or original petitions or proceedings in execution. Preliminary or interlocutory judgments which ascertain rights and direct further inquiries which determine liabilities though further directions are given for ascertaining the measure of those liabilities must be deemed to fall within Clause 15. See however Rahmubhoy Hubibhoy v. Turner (1890) 18 I.A. 6 and Syed Muzhar Husein v. Bodha Bibi (1894) 22 I.A. 1, as to flail judgments under Section 595 of the Civil Procedure Code of 1882.

22. The Common Law Procedure Act, 15 and 16 Victoria, Chapter 76, racognized the distinction between interlocutory and final judgments. See Sections 27 and 140. But they were both 'judgments' as distinguished from ' interlocutory orders' under sections 52, 51 and 222. I am unable to agree with Mr. Sundara Ayyar that interlocutory judgments which decide the merits are not judgments under Section 15. The question still remains whether orders in incidental proceedinge for attachment or arrest before judgment, for a temporary injunction or for the appointment of a receiver are judgments within the meaning of the term as used in Clause 15. Such proceedings are not natural steps in the determination of the cause. But they are remedies, though provisional in their character, and the judicial' determination of those proceedings may well be deemed to be analogous to the disposal of original petitions which determines the rights of parties. An appeal was specially provided from such orders even in the code of 1859 and the decisions in such cases may well be treated as interlocutory judgments. Cases of stay of execution, or security for costs, whether the order is in favour of one party or another, must stand on the same footing as temporarily affecting the rights of parties.

23. We have now to examine the decisions to see how far these principles are in accord with the rules that are deducible from the oases. So far as I have been able to discover, there are only four or five decisions in which an endeavour has been ' made to arrive at a definition of the term ' judgment' as used in Clause 15 of the letters Patent, The decision in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 stands at the head of them all. A mandamus was issued by Mr. Justice Phear sitting on the Original Side on the Justices of the Peace of Calcutta to compel them to refer to arbitration a question of compensation. 'The mandamus was to do certain things or to show cause to the contrary so that the order of the Original Judge did not determine any question whatever between the parties. It only initiated the proceedings by which the liability of the Justices to make compensation would be ascertained and determined.' COUCH, C. J., says 'We think judgment in Clause 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.' I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment: for otherwise the rejection of a plaint for defect of form or insufficiency of court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning. I may also observe that the 'part 'which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account. The decision of Sonbai, widow of Fazul Habibhai v. Ahmed-bhai Habibhai (1872) 9 B.H.C.E. 398 is in substantial accord with the judgment of the High Court of Bengal though Chief Justice Sargent seemed to consider that Clause 15 was governed by Act VIII of 1859. That this latter view is erroneous appears to be clear from the decision of the Privy Council in Hurrish Chunder Chowdhry v. Kalisundery Debi (1883) I.L.R. 9 Calc. 482 (P.C.) where an order of a single Judge refusing to transmit an order of the Privy Council to a Subordinate Court for execution was held to be appealable as a 'judgment' under Clause 15 although such an order was not included as appealable under Section 588 of the Code of 1882. The decision in Desouza v. Coles (1868) 3 M.H.C.R. 384 was the first attempt in Madras to ascertain the meaning of the word judgment' in the Letters Patent. Leave to institute a suit having been refused by the Judge sitting on the Original Side on the ground that the cause of action having in great part arisen outside Madras, an appeal was preferred under Clause 15. The two very learned Judges who decided that case held that the term meant any derision or determination affecting the rights or the interest of any suitor or applicant. If they had stopped there it might be doubted whether this language was not in substantial accord with that of Sir R. Couch in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433. But Sir Adam Bittleston proceeds to say at page 388 'when the language giving the appeal is so general in its terms as that contained in the fifteenth clause of the chapter, it is, we think, impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from.' It seams to me that this is manifestly too wide a definition. And the opinion has been expressed in later cases in Madras and elsewhere that this is so. I need not stop to notice the passing remark in R. v. R, I.L.R. (1891) Mad. 83 that every order of a single Judge is a judgment. For this has been disapproved of in two later cases, Srimantu Raja Yarlagadda Durga Prasada Nayudu v. Srimantu Raja Yarlagadda Mallikarjuna Prasada Nayadu I.L.R. (1901) Mad. 358 and Kuppu-sami Chetti v. Rathnavelu Chetti I.L.R. (1901) Mad. 511 in which one of the learned Judges who was a party to the judgment in R v. R. I.L.R. (1891) Mad. 88 joined in the disapproval. In Chinnasimi Mudali v. Arumuga Goundan I.L.R. (1901) Mad. 432 which was an appeal from a decision of a single Judge declining to interfere under Section 25 of the Small Cause Courts Act, Sir S. Sobramania Ayyar, officiating C.J., and Russell, J., defined ' judgment ' in Section 15 of the Letters Patent by confining it to an adjudication of the right or liability. But they regarded a refusal to interfere as no judgment, It was said that the Court had a discretion to interfere and a refusal to exercise a discretion was no judgment, This raises a question as to whether the refusal to exercise a discretion does not involve the application of the judicial mind as much as a decision in the exercise of discretion. Observations similar to those that have been made in this case are to be found in Srimanta Raja Yarlagadda Durga Prasada Nayadu v. Srimantu Raja Yarlagadda Mallikarjuni Prasada Nayadu I.L.R. (1901) Mad. 358 and in Appasamit Pillai v. Somisundara Mudaliar I.L.R. (1903) Mad. 437 in which letter case Benson and Boddam, JJ, refused to entertain an appeal from an order refusing leave to appeal in forma pauperis because it was within the discration of the Court to grant or refuse such leave. I am unable to agree in the principle enunciated in those decisions is regards discretionary orders and orders refusing to exercise a discretion not being appealable. This view' was expressly disapproved of by Subramania Ayyar and Miller, JJ., in Maruthamuthu Pillai v. Krishnamachariar I.L.R. (1907) Mad. 143. In the Privy Council case of Hurrish Chnnder Chowdhry v. Kalisundery Debi I.L.R. (1883) Cal. 482 it was held that the Appellate Court had rightly entertained the appeal under Section 15 from the order of the single Judge who refused to transmit the order of the Privy Council for execution. The Appellate Court which entertained the appeal in Calcutta had expressly stated in the matter of the petition of Kally Soondery Dabia I.L.R. (1881) Cal. 594 that the wrong exorcise of discretion by the Judge below was the ground on which the appeal was entertained. In DeSousa v. Coles (1868) 3 M.H.C.R. 384 the point was wall put by Sir Adam Bittleston at page 388. The question of the right of appeal, he pointed out was differant from how a matter of discretion should be dealt with by an appellate Court. He said 'it is obvious that the duty of the appellate Court in disposing of the appeal may vary considerably according to the nature of the order or decree complained of. And we think it may be stated as a general rule that when the determination complained of is merely the result of the exercise of discretion on the part of the Judge, in a matter which was a proper subject for the exercise of that discretion, the appellate Court would rightly decline to interfere.' The fact of a matter being within the discretion of the original Judge is not a ground for refusing to entertain the appeal but a sufficient reason for declining to interfere with that discretion, I cannot therefore accept Mr. Seshagiri Ayyar's apparent concession that if the order of the single Judge is one which ha has made in the exercise of discretion, a party has no right to the exercise of that discretion in a particular way and is therefore not entitled to appeal when ha is aggrieved by an erroneous exercise of that discretion.

24. It is unnecessary to examine all the cases in detail. It is sufficient to say that I have gone through every one of them. In some of thorn the true principle does not appear to have been recognized or kept in view. In some others the application of the principle to the particular facts of the case appears to be open to exception. All the Calcutta oases cited at the bar The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Bang. L.R. 433, Howard v. Wilson I.L.R. (1879) Cal. 231, Ebrahim v. Fuckhrunnissa Begum I.L.R. (1879) Cal 531, Hurrish Chunder Chowdhry v. Kalisundary Debi (1883) I.L.R. 9 Cal. 482 (P.C), Toolsee Money Dassee v. Sudevi Dassee I.L.R. (1899) Cal. 361, Mussamut Brij Coomaree v. Ramrick Dass 5 C.W.N. 78, Gopinath Pati v. Moheswar Pradhan I.L.R. (1909) Cal. 1096 with the exception perhaps of the decisions in Mussamut Amirrunnessa v. Baboo Behary hall (1901) 25 W.R. 529, Mowla Buksh v. Kishen Pertab Sahi I.L.R. (1876) Cal. 102, Manly v. Patterson I.L.R. (1881) Cal. 339, Lutf Alikhan v. Asgur Rezi I.L.R. (1890) Cal. 455 and Kishen Pershad Panday v. Tiluckihari Lall I.L.R. (1891) Cal. 182 which are cases of leave to appeal to the Privy Council dealt with on special ground?, appear to be in accord with the principles I have endeavoured to formulate. So are also all the Bombay cases cited; Sonbai, widow of Fazul Habibhai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398, Hirji Jina v. Narran Mulji (1875) 12 Bom. H.C.R. 129, Vaghoji v. Camaji I.L.R. (1905) Bom. 249, Jehangir Cowasji v. The Hope Mills Limited I.L.R. (1909) Bom. 216, Atlas Assurance Company, Limited v. Ahmedbhoy Habibbhoy I.L.R. (1910) Bom. 1, and Soonabai v. Tribhovandas : (1908)10BOMLR337 . As regards the Madras eases it is impossible to express oneself as in agreement with them all. The decision in DeSouza v. Coles (1868) 3 M.H.C.R. 384 is certainly right, whatever may be said with reference to the definition given of 'judgment.' In Somasundaram Chetti v. Administrator-General I.L.R. (1876) Mad. 118 an appeal was rightly held to lie against an order determining the rate of commission payable to the Administrator-General. In R. v. R. I.L.R. (1891) 14 Mad. 88 the order of adjournment was certainly not appealable, But an appeal lay as regards the application to vary the rate of alimony and though the definition of judgment there was certainly open to exception the order of adjournment itself was not varied in appeal. In Vanangamudi v. Ranasami I.L.R. (1891) Mad. 406 where a single Judge had set aside a decree for rent in part and called for a report as to the remainder there was at least an interlocutory judgment from which an appeal was rightly held to lie. In Commercial Bunk of India, Limited v. Sabju Saheb I.L.R. (1901) Mad. 252 the application of a transferee from the plaintiff to be added as a party was refused, As the refusal was a determination of the proceeding so far as he was concerned, it seems to ma he was rightly held entitled to appeal The decision in Srimantu Raja Yarlagadda Durga Prasada Nayadu v. Srimantu Raja Yarlaqadda Millikarjuna, Prasada Nayadu I.L.R. (1901) Mad. 358 where an order refusing to stay execution was held not to be a judgment, proceeded on the authority of Ramier v. Dorasami Aiyar L.P.A. No. 5 of 1900 (unreported) and Mohabir Prasad Singh v. Adhikari Kunwar I.L.R. (1894) Cal. 473 and Upon the view that the order of the single Judge was one made by him in the exercise of his discretion. Staying execution is a temporary interference with a right adjudged, and the refusal to stay is a refusal of a provisional remedy, as would be the refusal of an injunction or an attachment before judgment. It appears to me that the sounder view is that of the Calcutta High Court in Mussamut Brij Coomaree v. Ramrick Dass 5 C.W.N. 781. The Calcutta case Mohabir Prosad Singh v. Adhikari Kunwar I.L.R. (1894) Cal. 473 which this Court purported to follow, is explained away in the later decision in Mussamut Brij Coomaree v. Rarrrick Dass 5 C.W.N. 781. I have already dealt with the argument derived from the discretionary character of the order. If pushed to its full length it would cover all oases of specific relief which are within the discretion of the Court and the grant or refusal of such relief would cease to bo the subject of appeal under Clause 15 of the Letters Patent, a result which shows its weakness. It is difficult to distinguish in principle between an order staying execution or refusing to stay it and an order directing security for the costs of an appeal during its pendency. Though the failure to furnish the security may eventually lead to the dismissal of the appeal where security was ordered, the refusal to direct security is not attended with any such consequences, All these orders affect the right of the parties though temporarily and must be deemed to fall within the definition of judgment. It is worthy of note that in Kuppus'tymi Chetti v. Rathnavelucketti I.L.R. (1901) Mad. 514 an order for stay of execution and an order for security for costs referred to by way of illustration were treated on the same footing though in favour of the opposite view that no appeal lay. It was rightly held, if I may presume to say so, in Sabhapathi Chetti v. Narayanasami Chetti I.L.R. (1902) Mad. 555 and Seshagiri Bow v. Nawab Askur Jung Atab Dowla I.L.R. (1903) Mad. 502 that an appeal lay from an order refusing to extend time for the giving of security for the costs of an appeal and from an order directing security to be given. Two further cases remain to be noticed. Veera-badran Chetti v. Nataraja Desihar I.L.R. (1903) Mad. 28 and Maruthamuthu Pillai v. Krishnamachariar I.L.R. (1907) Mad. 143. It is difficult to support the latter. An order refusing to issue a commission, however serious the ultimate results to the party, is a purely interlocutory order and not a judgment terminating a suit or other proceedings or affecting the merits. As regards the former it is possible to con tend that so far as the judgment of the single Judge of this Court was concerned it was passed in revision and not in the course, of an interlocutory proceeding. The Subordinate Judge had refused to issue a commission for the examination of a witness. That was a mere interlocutory order. Mr. Justice Boddam sat that aside in revision, Could his order be treated as other than interlocutory so far as the execution proceeding was concerned in which the witness was to be examined on commission? It is unnecessary to express an opinion on the question whether Mr. Justice Boddam's order was a judgment. A full examination of the cases cited on both sides leads me to the conclusion that no appeal lies from the order of Mr. Justice Wallis in the present case. I would answer the reference accordingly.

Ailing, J.

25. I agree that the answer to the question referred for disposal should be in the negative.


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