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Central Brokers Vs. Ramnarayana Poddar and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberO.S. App. No. 112 of 1951
Judge
Reported inAIR1954Mad1057
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10
AppellantCentral Brokers
RespondentRamnarayana Poddar and Co.
Appellant AdvocateS. Ramachandra Aiyar and ;G.M. Alagarswami, Advs.
Respondent AdvocateA. Kuppuswami, Adv.
Cases ReferredSimrathmull v. Jugraj
Excerpt:
letters patent (madras) (28 and 29 vict., c. 15) clause 15--'judgment'--scope of --code of civil procedure (act v of 1908), section 10--order for stay of trial --if' judgment';an order made under section 10 of he code of civil procedure or nay other provision of law for the stay of trial of a suit is not a 'judgment' within the meaning of that term in clause 15 of the letters patent (madras).;per mack j.--appealability should ultimately depend on the order itself.;case law reviewed.;appeal against the order of krishnaswami nayuduj j., dated 27th july 1951, and made in the exercise of the ordinary original civil jurisdiction of the high court in application no. 313 of 1951 in civil suit no. 356 of 1950.;the appeal first came up before rajamannar c.j. and venkatarama ayyar j., who made the.....the question referred to the full bench is as follows :"is an order made under section 10, c. p. c., or any other provision of law for the stay of trial of a suit, a judgment within the meaning of that term in clause 15 of the letters patent?"the scope of the reference is therefore restricted and circumscribed in character and we are relieved of the task of attempting to define the term "judgment" in clause 15 of the letters patent in all its aspects. an exhaustive definition of that word has not been successfully laid down in any decision in india during the last nearly a century though hidayatullah j. in -- 'manohar damodar v. baliram ganpat', air 1952 nag 357 at p. 376 (fb) (a) has brought out a definition containing the essential ingredients of a judgment derivable from various.....
Judgment:
The question referred to the Full Bench is as follows :

"IS an order made under Section 10, C. P. C., or any other provision of law for the stay of trial of a suit, a judgment within the meaning of that term in Clause 15 of the Letters Patent?"

The scope of the reference is therefore restricted and circumscribed in character and we are relieved of the task of attempting to define the term "judgment" in Clause 15 of the Letters Patent in all its aspects. An exhaustive definition of that word has not been successfully laid down in any decision in India during the last nearly a century though Hidayatullah J. in -- 'Manohar Damodar v. Baliram Ganpat', AIR 1952 Nag 357 at p. 376 (FB) (A) has brought out a definition containing the essential ingredients of a judgment derivable from various decisions.

2. Clause 15 of the Letters Patent with which we are now concerned is dated 28-12-1865 and has undergone a few amendments which are unnecessary for consideration in the present context. Prior to that, there was an earlier Letters Patent dated 14-5-1862 which by Clauses 14 and 15 provided that the High Court should have appellate jurisdiction which was till then exercised by the Sudder Adawlut. It is a matter of common knowledge that the first Letters Patent dated 14-5-1862 was Issued after the Charter Act of 1861, 24 & 25 Queen Victoria, Ch. 104, was enacted, which by Section 8 provided for the abolition of the Supreme Court and Sudder Adawlut Courts and constituted a High Court having all the Jurisdiction and powers of the Courts abolished.

The Letters Patent of 1362 was revoked by the one issued on 28-12-1865 which has continued till the present day with minor alterations and amendments. The Civil Procedure Code which was prevalent at the time both the Letters Patent were issued was Act 8 of 1859 which did not contain any definition of the word judgment. Sections 183 to 198 in Chapter IV of that Act dealt with judgments and decrees but there was no attempt made to give a precise definition of that term in the whole of the enactment. We have therefore to take it that the draftsmen of the Letters Patent or 1865, having before them the interpretation given to the word "judgment" in England at that time, must have intended to give that word the same connotation as was legally understood in England.

Under Section 19 of the Judicature Act of 1873 there was an appeal provided from a judgment or order of one Judge of the High Court to the Court of appeal. But even in that Judicature Act we do not find any definition of the term. Under Section 27 (I) of Part IX, Division I of the Judicature Act of 1895, it was provided that an appeal lay to the Court of appeal from all orders and judgments of of the High Court with certain exceptions which are enumerated thereof. Appeals were absolutely prohibited in certain cases and no appeal lay in other cases, whereas appeals lay with the leave of the Court of first instance or of the Court of appeal in other instances. The reason why we do not find any exhaustive definition of the word "judgment" in the English statutes is due to the fact that any decision which was sought to be appealed against would come either within the meaning of the word "judgment" or "order", and in that case it was unnecessary for the Court to find out whether the decision appealed against would come within the category of either the one or the other.

3. How the word "judgment" was understood in England can be seen from observations of the various English Judges in a number of cases referred to by Page C. J. in -- 'Dayabhai Jiwandas v. Murugappa Chettlar', AIR 1835 Rang 267 (FB) (B). The learned Chief Justice refers to 'Ex parte Chinery' (1884) 12 Q B D 342 at 345 (C); ,- 'Onslow v. Commissioners of Inland Revenue', (1890) 25 Q B D 465 (D) and various other cases, He also referred to 'Ex parte Moore', (1885) 14 Q B D 627 (E); 'In Re: Reddell; Ex parte Earl of Straitmoore', (1883) 20 Q B D 512 (F), and came to the conclusion that the word "judgment" in Clause 13 of the Letters Patent of the Rangoon High Court (the equivalent to Clause 15 of our Letters Patent) means a "decree" in a suit by which the rights of the parties at issue in the suit are determined. The extreme view taken by the Rangoon High Court is probably in accordance with the interpretation put upon the word in the English Courts. But in India on the construction of Ol. 15 of the Letters patent of Calcutta, Madras and Bombay and the similar Clause 13 in the Letters Patent of the other High Courts there have been a large number of decisions taking one view or the other.

So far as our court is concerned, the leading authority on the subject is a Full Bench decision reported in -- "Tuljaram Row v. Alagappa', 35 Mad 1 (FB) (G) which has stood the test of time for more than forty years and has not been dissented from in this Court at all. Under those circumstances we feel we are bound by that decision. Not only has this decision been consistently followed in, this Court but it has received the approval of the Calcutta High Court in -- 'Mathura Sundaridasi v. Haranchandra', AIR 1916 Cal 361 (H); -- 'Chandi Charan v. Jnanendra Nath', AIR 1919 Cal 667 at p. 663 (I); -- 'Lea Badin v. Upendra Mohan', AIR 1935 Cal 35 (J) and by a Full Bench of the Lahore-High Court in -- 'Shawhari Dial & Sons. v. Sohna Mal Beliram', AIR 1942 Lah 95 (FB) (K). The view taken by the Rangoon High Court in -- 'AIR 1935 Rang 267 (FB) (B)' has received the approval of the Nagpur High Court in -- 'Kunwarlal Singh v. Uma Devi', AIR 1945 Nag 166 (L), and --'Sankarrao v. Kalyanjl Bhai', AIR 1948 Nag 85 (M) as well as -- 'AIR 1952 Nag 357 (PB) (A)'. The Allahabad High Court in -- 'Shahzadi Begum v. Alakhnath', AIR 1935 All 620 (2) (FB) (N) has come to practically the same conclusion.

The conflict between the various High Courts on this important " topic has been noticed by the Supreme Court in -- 'Asrumatidebi v. Rupendra Deb', (O), where his Lordship. Mukherjea J. held that an order for the transfer of a suit under Ol. 13 of the Letters Patent of the Calcutta High Court is not a judgment within the meaning of Clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent "as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground." After adverting to the conflict between the various High Courts and expressing a hope that at some future time it would be necessary for the Supreme Court to determine with as much definiteness as possible the true meaning and scope of the word "judgment" in Clause 15 of the Letters Patent, His Lordship states that in the particular case before the supreme Court viewed in any light the order of transfer would not be a judgment. His Lordship was inclined to agree with the definition of the word "judgment" given by Sir Richard Couch C. J. in the -- 'Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd.', 8 Beng LR 433 (P) and by Sir Arnold White C. J. in -- '35 Mad 1 (FB) (G)'. The Supreme Court is therefore inclined to take the same view that was taken by Sir Arnold White C. J. in -- '35 Mad 1 (FB) (G)', where he lays down the test to be applied to find out what a "judgment' is.

"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 tne 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 mean-ing of tne 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.

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 vtew to rendering the judgment effective it obtaned) 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."

4. Two tests have been laid down by their Lordships of the Supreme Court to find out whether an adjudication in a particular proceeding is a Judgment or not and they are as seen from pages 200 and 201(1) whether it terminates the suit or proceeding; and (2) whether it affects the merits of the controversy between the parties in the suit itself. If either of these conditions is complied with, then it is a Judgment. But if it is only an adjudication on an apptication which is nothing more than a step towards obtaining a final adjudication in the suit it is not a judgment at all. In the light of the observations contained in the Supreme Court decision, which has not disapproved, but accepted in the main the observations of Sir Arnold White C. J. as to what ought to be a judgment in Clause 15 of the Letters Patent, we have to decide whether the stay of the trial of the suit in the present case is a judgment or not.

5. Though Sir Arnold White C. J. in discussing the observations of Sir Richard Couch C. J. in

-- '8 Beng LR 433 (P)' was not prepared to say that in order that a decision should be a judgment it must be one which affects the merits by determining some right or liability, their Lordships of the Supreme Court have laid down that also as one of the tests, for Mukherjea J. at page 200 of the report quotes in extenso from the observations of Sir Richard Couch C. J. and after considering the views expressed both by Sir Richard Couch C. J. and by Sir Arnold White C. J. at page 201 determines the tests to be applied to find out whether the order in the case which was before the Supreme Court was a judgment or not. Those tests are, as already stated, whether the order affects the merits of the controversy between the parties in the suit or whether it terminates or disposes of the suit on any ground. After considering the various decisions on the point regarding the finality of an order made under Clause 13 of the Letters Patent, the Supreme Court held that such an order did neither affect the merits of the controversy, nor determine or dispose of the suit on any ground. It is on that ground that the supreme Court held that such an order was not appealable. It also held that an order refusing to rescind leave to sue granted under Clause 12 of the Letters Patent was not a judgment under Clause 15 of tlie Letters Patent and disapproved the observations contained in -- 'Krishnareddi v. Thanikachala', AIR 1924 Mad 90 (Q).

6. We do not intend to discuss the various authorities considered by the learned Judges who constituted the Pull Beach In -- '35 Mad 1 (G)', because the principles which have been enunciated therein have not been discountenanced so far and we propose to accept the same as binding upon us. The question now is whetner the order, of stay conforms to the criteria laid down by their Lord-ships of the Supreme Court.

7. Mr. S. Ramachandra Aiyar for the appellant developes his argument in this way. He compares . Sections 10 and 11, C. P. a, for elucidating the principle that the two sections govern cases of parallej litigation. Whereas Section 11 prohibits the trial of a suit or issue in which cne matter has been directly and substantially in issue in a former suit between the same parties or between parties under whom tney or any of them claim, litigating under the same title in a Court competent to try such subsequent suit, or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court, Section 10 on the other hand puts a restraint upon the trial of a suit by a Court in which the same set of circumstances and factors are present in a previously instituted suit already existing in another Court. It is urged that if the conditions laid down in Section 10, C. P. C., are complied with in respect of a subsequently instituted suit, then the Court is prohibited from proceeding with the trial of the subsequent suit until a final decision is arrived at in the previously instituted suit.

The result, according to the learned counsel, is that if the previously instituted suit ends after trial, its final outcome would conclude the controversy in the subsequent suit by application of the principle of 'res judicata'. Such being the case, the effect of Section 10, C. P. C., is to debar the hearing with the object of applying Section 11, C. P. C., at a later stage. Viewed in that light, an order staying a suit is one which affects the jurisdiction of the Court to proceed with the suit and is not a procedural matter. When once, as a result of a compulsory stay under Section 10, C. P. C., the Court stays the suit, then it has no further jurisdiction to enquire into the merits of the case, because if the earlier suit is disposed of by the other Court, then the decision of that would be compulsorily binding on the subsequently instituted suit. It is also stated that the wording of Section 10, C. P. C., prohibits the hearing of the suit so that there is no option left to the Court to refuse the stay if the essentials are present.

In this connection certain observations of Phil lips J. in -- 'Ramachandram Pillai v. Neelambal Achi', AIR 1923 Mad 88 (1) (R) are brought to our notice. There the learned Judge held that on an application to revise the order of a subordinate Court refusing to stay a subsequently instituted suit on an application made on the ground that a previously instituted suit related to the same cause of action and where the question in issue in both the suits is the same and the disposal of that ques tion in the first of the suits has the effect prac tically of disposing of the second suit, then the refusal by the Court to stay proceedings in the second suit being in contravention of Section 10, C. P. C., amounts to an assumption of jurisdiction which the Court did not possess. Therefore the learned Judge thought that the Subordinate Judge's order re- fusing to stay proceedings involved a question of jurisdiction. No doubt there are general observa tions to the effect that the question is one of jurisdiction. But what we have to decide is whe ther as a result of the disposal of the suit Insti tuted earlier, the Court is absolved of all respon sibility with regard to taking any proceedings, and has simply to dismiss or decree the suit on the basis of the decision in the previously instituted suit.

Mr. Ramachandra Alyar is not able to convince us that the Court beiore which the subsequently instituted suit is pending has no further obligation than to follow simply the result of the previously instituted suit. Circumstances might arise where the Judge trying the subsequent suit might have to go into various questions and find out whether the earlier decision is 'res judicata' or not. There is also the lact that the competency of the Court to try the subsequent suit may have to be determined. We are not therefore convinced that though the same question of Jurisdiction might arise in the application of Section 10, C. P. C., still an order staying a suit either affects the merits of the controversy or puts an end to any matter in dispute. Can it be said that the stay of the trial affects the merits of the controversy?

Learned counsel for the appellant does not go to the extent of saying that when a Court, on being satisfied that the provisions of Section 10, C. P. C., can be applied, passes an order, such an order affects the merits of the controversy. His attempt has been to show that it terminates or disposes of the suit. Among the large number of cases cited and discussed at the b'ar, only a few relate to the question of appealabiiity in cases where Section 10, C. P. C., has been applied. We shall first of all deal with cases directly bearing on that aspect and then refer to other decisions from which observations can be gathered either for, or against the view contended for by the appellant.

8. There is the authority of sadasiva Aiyar and Napier JJ. to the effect that if a Court of appeal or revision, by application of Section 151, C. P. C., stays further proceedings in an original suit instituted subsequent to an earlier suit, in which the same subject-matter is involved, then such an order would not be a judgment within the meaning of Clause 15, Letters Patent. The learned Judges say that an order staying the further trial of a suit is similar to an order adjourning the trial of a suit and in those circumstances the observations in -- '35 Mad 1 (FB) (G)' would not bring it within the definition of the term "Judgment". Vide -- 'Palaniappa Chetty v. Chidambara Ukai', AIR 1916 Mad 745 (1) (S) no doubt this decision is not directly in point, but the view of the learned Judges indicate that stay of further trial would be tantamount to adjourning the trial of the suit and would not confer any finality to the proceedings. As has been stated in the order of reference, there is no decision of this Court directly bearing on the point where an appeal has either been entertained or refused to be entertained against an order passed under Section 10, C. P. C. We shall now discuss the cases of other High Courts.

9. Wadia J., sitting on the Original Side of the Bombay High Court tried two preliminary issues in suit No. 174 of 1931 pending before him & delivered a judgment refusing to stay that suit when an application was made that in a previously instituted suit on the file of the District Munsif's Court of Bellary, the same subject matter was in dispute and as such the suit in the High Court ought to be stayed under Section 10, C. P. C. After delivering a judgment refusing to stay the suit he directed the trial to proceed on the other issues raised and ultimately passed a decree in favour of the plaintiff. Against the preliminary Judgment to the effect that, the suit should not be stayed, an appeal was preferred and as is seen from the concluding portion of the report in --'Jivanlal Narsal v. Pirojshaw B. Vakharia & Co.', AIR 1933 Bom 85 (T), an appeal was preferred against the decree also. On a preliminary objection taken that no appeal lay against the Judgment refusing to stay the trial of the suit under Clause 15 of the Letters Patent, the learned Judges of the Bombay High Court held that an appeal lay. The leading judgment was that of Blackwell J. who referred to -- 'Hadjee Ismall v. Hadjee Mohamed', 13 Beng LR 91 (U), as well as to--'Joylal & Co. v. Gopiram Bhotica', AIR 1920 Cal 685 (V), which were decisions of -the Calcutta High Court and also to an earlier decision of the Madras High Court reported in -- 'De Souza v. Coles', 3 M. H. C. R. 384 (W), and held that the refusal to stay the suit related to a question of jurisdiction to entertain the suit and as such the determination of the right of a party who might adversely be affected, and that an appeal lay.

The learned Chief Justice Beaumont C. J. agreed with Blackwell J. in holding that a refusal to stay under Section 10, C. P. C., is a decision which in effect goes to the jurisdiction of the Court. The Bombay High Court did not at all refer to the comprehensive definition of the word "judgment" given in -- '35 Mad 1 (FB) (G)' and the tests laid down in that Full Bench case have not been adverted to. It has to be remembered that the Supreme Court in the recent case already referred to, has not approved of the very wide definition of the term in -- '13 Beng LR 91 (U)', & though there is no express dissent from the observations of that case by the Supreme Court, still we have to take it that the decision of the Supreme Court being what it is, does not in any way approve the judgment of Couch C. J. and Pontifex J. Apart from other reasons this by itself would be sufficient for us to hold that -- 'AIR 1933 Bom 85 (T)' cannot be considered as good law. Moreover, the question of the correctness of the order refusing to stay the suit was raised after the pro-ceedings terminated completely on the Original Side and an appeal against the final decree had also been before the Court. Even if there had been no appeal against the judgment refusing to stay the suit, still in an appeal against the decree in the suit, it was open to the party to have raised the question regarding the refusal to stay the suit. On that ground, probably the judgment of the Bombay High Court can be justified.

The learned Judges of the Bombay High Court have referred to the Judgment of Sir Asutosh Mookerjee J. in -- 'AIR 1920 Cal 685 (V)', but to our opinion there is a world of difference between the determination of some right or liability in holding that a party is precluded from taking advantage of Section 19 of the Arbitration Act to stay legal proceedings by his conduct in taking part in the proceedings and getting an order from Court before a stay application was filed in an application to stay the proceedings in a subsequently instituted suit on account of an earlier suit regarding the same subject-matter between the same parties having been instituted. Section 19 of the Arbitration Act enables a party to apply to stay legal proceedings and if that is refused by reason of some steps taken by him earlier, then such a decision determines that the controversy between the parties must be decided by the Court and not by the arbitrators.

There can be no doubt that a decision on a matter like this determines the rights between the parties and is a Judgment. But the application of this principle to the stay of trial under Section 10, C. P. C., is, in our opinion, not apposite. We are not prepared to go so far as Beaumont C. J. did, when he says that the decision of a Judge under Section 10, C. P. C., really determines the right of a plaintiff to sue in a particular Court. For, as we have already stated, even if the earlier instituted suit has been disposed of, one way or the other, still the Court in which the subsequently instituted suit is pending will have to determine the question regarding the merits before it can finally dispose of the suit. Judged by the two tests laid down by the Supreme Court, viz., whether the order affects the merits of the controversy between the parties in the suit, or determines or disposes of the suit on any ground, it seems to us that the decision in --'AIR 1933 Bom 85 (T)'. does not conform to those two testa and as such cannot be followed.

10. A more recent decision of the Bombay High Court reported in -- 'Jai Hind Iron Mart v. Tulsiram', (X) has been brought to our notice. The learned Chief Justice who delivered the judgment in that case followed toe earlier decision of that Court in -- 'AIR 1933 Bom 85 (T)', and held that an order under Section 10, C. P. C., is not an order dealing with procedure but is one dealing with the jurisdiction of the Court and being a mandatory provision, the decision refusing to stay a suit under Section 10, C. P. C., is one affecting the jurisdiction of the Court and as such appealable, He also referred to a still earlier decision oi the same High Court reported in -- 'Veenechand v. Lakshmichand Manekchand', AIR 1920 Bom 309 (Z), where a contrary view had been taken. The reasons given by the learned Chief Justice are practically the same as those contained in -- 'AIR 1933 Bom 85 (T)' and as we substantially disagree with that decision, -- ' (X)' also has to be eschewed from consideration.

11. One of the learned Judges who constituted the Bench in -- 'Durgaprasad v. Kantichandra Mukherjee', AIR 1935 Cal 1 (Y) Fanckridge J. followed the decision of Beaumont C. J. and Blackwell J. in -- 'AIR 1933 Bom 85 (T)' and held that an order refusing to stay a suit to which the provisions of Section 10, C. P. C., applied is a Judgment within Clause 15 of the Letters Patent and as such appealable, whereas the other Judge did not consider that question at all. The observations of the learned Judge, if anything, are obiter because the objection regarding the appeal ability, though raised initially by the respondent, was not pressed to Its logical conclusion by him. In our view -- 'AIR 1935 Cal 1 (Y)' does not advance the case any further than the case which it purported to follow.

12. On the other hand the view expressed in AIR 1920 Bom 309 (Z) is that an order refusing to grant an injunction restraining a defendant from prosecuting a suit filed by him in a native State is not a judgment within the meaning of Clause 15 of the Letters Patent and no appeal lies against that order. As Heaton J. points out at page 311 of the report, the refusal of an injunction does not involve any question of jurisdiction. The other member of the Bench, Macleod C. J. considered the question from the point of view of the ousting of the jurisdiction and was inclined to think that if the jurisdiction of the Court is in any way ousted it is owing to the fact that the plaintiff had preferred to file a suit in the native State and might get a decree in that Court which would bar, under Section 13, C. P. C., the plaintiff's suit in the Bombay Court. But the order of stay if allowed to stand has not got the effect of ousting the jurisdiction of 'the Court. The direct consequence of that order cannot amount to a deprivation of the jurisdiction which might happen in future if the suit filed in the native state is decided in a particular way. But, as it was a thing to take place 'in futuro', the learned Chief Justice held that no such jurisdiction is ousted. Though this decision is in fact based upon an order made under Section 151, C. P. C., the principle on which the test has been applied can be appropriately used in determining whether an order of stay under 8. 10, C. P. C., is a judgment as well.

13. An attempt has been made to invoke the definition of the term "jurisdiction" given by Asutosh Mookerjee A. C. J. in -- 'Hriday Nath Ray v. Ramchandra Barna Sarma', AIR 1921 Cal 34 at pp. 35, 36 (Z1), for the purpose of applying it in cases of trial with the object or stating that if "jurisdiction" is defined as the power of a Court to hear or determine a case or to adjudicate or exercise any judicial power in relation to it, then an order staying, or refusing to stay, a suit would amount to hearing and determining a case or ad judicating or exercising a judicial power. It is no doubt true that by the word "jurisdiction" is meant the authority which a Court has got to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its consideration. How far a Court, when it says that temporarily its hands will be stayed pending the decision of another suit instituted earlier in another Court, can be said to decide matters litigated before it is not quite clear; and we do not think that any help can be gained from this decision.

14. Mr. Ramachandra Aiyar's next attempt is to call in aid observation of Woodroffe J. in -- Ramendranath Roy v. Brojendranath Dass', 'AIR 1918 Cal 858 at pp. 859 and 860 (Z2), where the learned Judge was considering the question as to whether an order made on the Original side of the High Court in a suit, by which permission was refused to the plaintiff to proceed with it against several defendants impleaded therein, on the ground of multifariousness, and giving him time to elect regarding how he should proceed with the suit and which of the defendants should be retained on record, is a judgment within Clause 15 of the Letters Patent against which an appeal lay. Both the learned Judges, Woodroffe and Mookerjee JJ. were of the opinion that such an order amounted to a judgment, which was appealable. A casual perusal of the various observations contained in this decision would be sufficient to show that the learned Judges were of opinion that looking at the substance of the matter, the order giving the plaintiff opportunity to elect is nothing but adjudication, which finally determined, so far as the Court was concerned, the question whether a certain party should be impleaded in a suit or not. Such an order would certainly come within the tests laid down by the Supreme Court. There can be no doubt that it affects the merits of the controversy, for, if a person is refused permission to get a relief against a particular defendant, it would be an order affecting the merits of the case. It is also final so far as the Court is concerned in that, after that decision is given, if the plaintiff does not elect, the suit will have to be dismissed for multifariousness. We may also note in this connection that Mockeries J. in considering the question of ap-pealability, has accepted the tests laid down by White C. J, in -- '35 Mad 1 (PB) (G) and after examining the facts or the case before him in the light of the observations of White C. J. he held that the order giving permission to the plaintiff to elect put an end to the suit so far as the trial Court was concerned in certain respects, and such an adjudication should be termed a judgment not merely within the tests laid down In -- '35 Mad 1 (FB) (G)' but also according to the definition given by Couch C. J. in -- '8 Beng LR 433 (P); -- 'AIR 1918 Cat 858 (Z2)' is therefore not an authority which would in any way help the appellant for tne reason that it conforms to the principles enunciated by the judgment of the Supreme Court. While discussing the correctness oi -- 'AIR 1933 Bom 85 (T)', we have already referred to the otner Calcutta decision on which stress was laid by the learned counsel, viz., --'AIR 1920 Cal 685 (V)'. We do not wish to repeat what has already been stated. On tne facts of that case, the decision, if we may say so, is perfectly right for, when a party is told that on account of his acquiescence & submission to the Court's jurisdiction by taking certain proceedings before it, he cannot later on invoke Section 19 of the Arbitration Act and have the suit stayed, it has necessarily to be said that such an order is one on the merits and deals with the controversy finally so far as the right to get a stay is concerned. Here, certainly there is a decision which affects the merits of the question and also determines some right or liability. The learned counsel for the appellant has not been able to satisfy us that neither the observations contained therein nor the decision can be applied for the elucidation of the point which we have now to consider. Observations of Mookerjee J. at pages 616 and 617 of the report are illuminating and we need not extract them, in this judgment. Such a decision virtually determines the controversy with regard to the right of the party conferred under Section 19 of the Arbitration Act to stay the legal proceedings. In such circumstances, we have no doubt that the decision in question is a judgment.

15. An attempt has been made to apply, by analogy, the principles laid down in Arbitration Act (Indian) 'In Re: Atlas Assurance Co. Ltd. v. Ahmedbhoy Habibboy', 34 Bom 1 (Z3) where the question was whether an order of a Judge dismissing a petition to revoke a submission to arbitration on the ground that the arbitrators were transgressing the bounds of the reference is a judgment within the meaning of Clause 15, Letters Patent. The learned Judges held that such an order compels the party to submit to the jurisdiction of the arbitrators, though the complaint is that no such jurisdiction exists. It therefore decides the question of right whether or not the party is bound by the terms of the reference to arbitration, and the party is deprived of the right at common law to have the dispute decided in the ordinary way in a Court of law. It goes to the jurisdiction and is not passed as an exercise of discretion. This decision is perfectly understandable and conies within the ambit of the tests laid down by the Supreme Court. It certainly decided a question finally between the parties, via., that the arbitrators alone, and not the Court, should decide the dispute. There is a finality attached to such a conclusion though nothing has been adjudicated on the merits . There can be no question of similarity between a conclusion on that basis and an order staying the trial of a suit.

16. We have still a few more cases in which the "decisions" have been held to be judgments in addition to those discussed above and one of the most important of them is a Full Bench decision of the Lahore High Court reported in -- 'AIR 1942 Lah 95 (PB) (K)'. That was a case where the trial Court holding that it had no jurisdiction to hear a suit, returned the plaint for presentation to the proper Court and, on appeal under the provisions of Order 43, Rule 1, C. P. C., a Judge of the High Court held that the trial Court had jurisdiction and directed it to proceed with the suit. On a further appeal under the Letters Patent having been preferred, tne question that was considered by the Full Bench was whether the order of tne single Judge amounted to a "judgment" within Clause 10 of tne Letters Patent of tne ignore High Court, corresponding to Clause 15 of our Letters Patent. It was held by tne full Bench that it was a judgment, placing reliance upon the tests laid down oy White C. J. in -- '35 Mad 1 (PB) at page 7 (G)'. The judgment of the Pull Bench was delivered by Dalip Singh J. who at page 100 of the report summarises tne conclusions after reviewing the case law of the various Courts. He quoted with approval the dictum of White C. J. and followed the same. An earlier decision of the same Court in -- 'Ruldu Singh v. Sanwal Singh', AIR 1922 Lah 380 (2) (Z4) was also followed. It does not require much of logistics to distinguish between a case where a finai decision is arrived at, that a particular Court is competent to entertain a plaint and thereby putting the seal of finality upon the jurisdiction of the court, and an instance in which the trial of a suit is stayed pending disposal of an action on a similar matter elsewhere. The Lahore case following as it does the tests propounded by the Madras Full Bench is perfectly correct on the facts; but the observations therein can be of no assistance in deciding the point for consideration here. It is unnecessary to refer to the other Lahore case cited, viz., -- 'Shibba Mal v. Rupnarain', AIR 1928 Lah 904 (Z5) which has been fully explained in -- 'AIR 1942 Lah 95 (FB) (K)'.

17. The other line of cases in which pending an appeal there has been a refusal to stay execution, or proceedings by a single Judge of a High Court and such a decision has been held to be a judgment and hence appealable under Clause 15 of the Letters Patent need not detain us long, because the principles to be considered there are essentially different from the circumstances where a suit has been stayed under Section 10, C. P. C. The question of appealability in execution proceedings will be considered in -- 'Rangaswami Chettiar v. Eswaramurthi', (PB) (Z6) which was heard immediately after arguments in the above Original Side appeal were heard. Under these circumstances, decisions such as -- 'Sona-chalam Pillai v. Kumaravelu Chettiar', AIR 1924 Mad 597 (Z7); -- 'Pedda Jeeyangarla Varu v. Krishnamaeharlu', AIR 1927 Mad 393 (Z8); --'Pethapcrumal Chettiar v. Chidambaram Chettiar', AIR 1927 Mad 592 (Z9); -- 'Abdul Nabhi Saheb v. Ramadashmamah', AIR 1948 Mad 371 (Z10) and 'In Re: T. K. Ratna Mudaliar', (Zll) all of which relate to grant, or

refusal, to stay proceedings in execution under Order 41, Rule 5, C. P. C., raise different matters for consideration.

18. The only other case which requires respectful attention is a judgment of their .Lordships of the Privy Council reported in -- 'Hurrishchander Chowdhury v. Kalisundari Debi', 9 Cal 482 (PC) (Z12). When a Judge of a High Court who had been appointed to dispose of matters relating to appeals to the Privy Council refuses to transmit for execution an order of Her Majesty in Council to lower Court, his order has been held to be a judgment within the meaning of CL 15 of the Letters Patent and as such an appeal lay from it to a Bench. Their Lordships considered the case from the point of view of jurisdiction and were of opinion that if a Judge of the High Court makes an order under a misapprehension of the extent of his Jurisdiction, the H'gh Court certainly has power, by appeal or otherwise, to set right such a miscarriage of justice.

When once an order of the Privy Council is not transmitted for execution to the lower Court there is the seal of finality put upon the executability by a single Judge of the High Court, & very little reasoning is necessary to snow that such a decision would amount to a judgment; for when once the High Court refuses to transmit the decree of the Privy Council it is not possible for the successful party to reap the fruits of his decree by execution, the reason being that no Court of first instance can execute an order or a decree of the Privy Council unless the same has been transmitted by the High Court for execution, the Court of first instance having no power either 'suo motu' or on the application of the party, to take up a decree or order of the Privy Council and execute the same. The other point raised in that case was whether an order refusing transmission amounted merely to a ministerial proceeding, or one in which the Court had exercised a judicial discretion and come to a decision. On that mat-ter also their Lordships of the Privy Council were definitely of opinion that it was not a case of any administrative or ministerial matter but is one relating to judicial discretion in coming to the conclusion. This decision cannot help the appellant.

19. Two decisions of the English Court of appeal both reported in the same volume, viz., -- 'Tnom-son v. South Eastern Rly. Co.', (1882) 9 Q B D 320 (Z13) and -- 'Shubrook v. Tufnell', (1882) 9 Q B D 621 (Z14), were brought to our notice by learned counsel for the appellant in support of his contention. So far as the earlier case is concerned, the question of appealability was not considered and decided. But the learned Lord Justice assumed for the purpose of that case that the order sought to be appealed against was a final order within the meaning of the definition in the Judicature Act and allowed the appeal. What happened there was that there were two cross-actions between the same parties, arising out of the same matter, and the action brought against the party on whom the burden of proof lay and the action brought by him against the other party, were both pending and an application before the Queen's Bench Division for stay of the action by the party on whom the burden of proof lay was granted by the Queen's Bench Division. On an appeal against that order by the party on whom no burden of proof lay, contending that the action initiated by the party on whom the burden of proof lay should hot have been stayed, the Court of appeal set aside the order of stay and directed the proceedings to go on. There is some similarity between the present case and the action before the Court of appeal.

But the question of appealability has not been raised before the appellate Court and in the Judgments of both Brett L. J. and Holker L. J., we do not find any discussion of that question. Probably it was assumed that since there was an appeal under the Judicature Act against any judgment or order, the case can certainly be brought within the meaning of the term "order" and as such an appeal lay. In fact in the latter case the question of appealability came to the forefront and Jessell M. B. held that where an arbitrator under an order of reference stayed a case for the opinion of the Court which provided that if the opinion of the Court should be one way the case was to be referred, back to the arbitrator, and if the other way, judgment must be entered for the defendant, and the Divisional Court decided in favour of the plaintiffs and referred the case back to the arbitrator, on appeal by the defendant it was held that the order is a final order and as such - appealable under Section 19 of the Judicature Act of 1873, which gave a right of appeal from any judgment or order.

In view of the wide amplitude and significance of the expressions contained in Section 19 of the Judicature Act, there can be no doubt regarding me appropriateness or justifiability of those decisions. As we have already stated, in England an appeal lay from any judgment or order; but the same has been circumscribed by various checks and balances in the same statute. We do not think that these English cases can help the elucidation of the present dispute.

20. We have next to deal with cases brought to our notice where various kinds of orders have been held to be non-appealable as they do not come within the meaning of the term "judgment". The most important case on the subject is the Pull Bench decision of the Rangoon High Court reported in -- 'AIR 1935 Rang 267 (B)'. In our opinion the learned Judges in that case have put too narrow an interpretation than the meaning warrants, for in their view "judgment" in Clause 13 means a "decree". That this cannot obviously be right is clear from what the Supreme Court has laid down in the most recent case and as such it does not require any elaboration or discussion lor us to refuse to accept the narrow interpretation of the term "judgment" in CL 15.

As the earlier decisions reported in -- 'V.R.M. Raman Chettiar Ltd. v. Bank of Chettinad', AIR 1933 Rang 15 (Z15) & 'Madangopal Bagla v. Chettiar Firm, S. P. K. A. A. M.', AIR 1935 Rang 73 (1; (Z16) have been considered in the later Pull Bench case, they do not carry us long at all. Likewise the learned Judges of the Allahabad High Court constituting the Full Bench in the case reported in -- 'AIR 1935 All 620 (2) (N)' in following -- 'AIR 1935 Rang 73 (1) (Z16)' and holding that an order dismissing an application under Section 5 of the Limitation Act and refusing to extend the time for filing an appeal, is not a judgment within the meaning of Clause 10 of the Letters Patent have put a very restricted interpretation on the word "judgment". This restricted and constricted meaning of the term does not appeal to us, especially after the clarification of the term by the Supreme Court. In addition, at pp. 622-23 of the report it is seen that the learned Judges were inclined to say that the tests laid down by Arnold White C. J. are put in too wide a language and as such were not acceptable to them. We have already held that the tests laid down in -- '36' Mad 1 (PB) (G)', are binding on us. In such circumstances it cannot be held that --'AIR 1935 All 620 (2) (N)' can be of any assistance.

21. We next come to the Pull Bench decision of the Nagpur High Court which has already been referred to, where a majority of Judges agreed in the main with the definition put by the Madras High Court in '35 Mad 1 (PB) (G)' and held that a remand order of a single Judge of the High, Court sitting in second appeal whereby an issue alone is remitted for trial or orders and some evidence has to be taken on that, but which does not decide the controversy either wholly or in part cannot be a judgment within the meaning of Clause 10 of the Letters Patent of that Court; and a distinction is made where a Court sets aside the decree and makes a binding order on the merits of the controversy before remitting the case for trial, in which case the order must be treated as a judgment within the meaning of the clause. As already mentioned, Hidayatullab J. has attempted an interpretation of the word Judgment, but in our view, that is a task beset with many pitfalls and the safest method is to find out whether any particular decision amounts to a judgment or not, in view of the light thrown upon that expression by the Supreme Court.

We have in our own Court decisions on similar matters, one of which is -- 'Mohamed Ali v. Ambaiavana Chettiar', AIR 1949 Mad 169 (Z17). In that case, Cnandrasekhara Aiyar J. in hearing a City Civil Court appeal directed the trial Court to take fresh evidence on one issue and the ques-tion was whether that order was appealable. The Bench held that applying the tests laid down in 35 Mad 1 (FB) (G)', the direction to the trial Court to take fresh evidence cannot be termed a Judgment at all. Reference was made to --'Punnayya v. Parandamayya', AIR 1923 Mad 317 (Z18), where exactly a similar question arose and that was whether an order calling for a finding from the lower Court on an issue, whether newly framed or not, was a judgment or not under the Letters Patent and the decision was in the negative.

Another decision which may be usefully referred to is that of Wallace and Tiruvenkatachariar JJ. In -- 'Nageswara Aivar v. Ramanathan Chettiar', AIR 1929 Mad 197 (Z19), where the learned Judges negatived the contention that an order of a single Judge of the High Court ordering stay of further proceedings regarding the passing of a final decree in a mortgage suit pending an appeal preferred against a preliminary decree is not a judgment within the meaning of Clause 15 of the Letters Patent. The Bench there differentiated between the allowance of stay in execution matters and those not in execution. It followed the tests laid down in '35 Mad 1 (FB) (G)'. Though it is stated in certain portions of the judgment that execution has been stayed on terms and the appellant was controverting the terms imposed, still the actual facts of the case were that further proceedings leading to a determination and pass-ing of the flnal decree in a mortgage suit were stayed and there was no question of any execution at all.

The reasoning of the learned Judges that the order did not put an end to the proceedings but merely adjourned the suit if the appellant complied with the terms, and if not, the proceeding's go on, is perfectly correct. We agree with the conclusions arrived at therein. Instances where certain orders have been held to be not judgments are numerous and at this stage it is pedantic to encumber this judgment with citations of the came. But it may be useful to remember that an order on an application for extension of time to furnish security for staying all proceedings in an administrative suit was held to be not a judgment as it did not affect the rights of the parties even temporarily nor can it have any effect for good or bad in the ultimate determination of the suit.

22. With regard to the decision of Gentle and Bell JJ. in 'AIR 1-948 Mad 371 (Z10)', where the learned Judges held that an order on an interlocutory application in a second appeal granting stay of proceedings till the disposal of the second appeal is a judgment within Clause 15 of the Letters Patent, though based upon the observations in '35 Mad 1 (PB) (G)', in our opinion cannot be correct for the reason that such an order does not deal finally with any matter in controversy between the parties; nor is there a decision on the merits.

23. Though a sentence from the judgment of Sir Arnold White C. J. has been quoted, still the whole tenor of the judgment of the Full Bench has to be taken into consideration, and tested in that way, it cannot be said that such an order can be a judgment.

24. The only other argument that requires serious consideration is that put forward by the appellant's learned counsel that the stay of trial amounts to an infringement of vested rights aa no procedural form is involved, as there is a marked distinction between certain substantive rights conferred by the Civil Procedure Code and those contained in other provisions. We are asked to say that Sections 9, 13, 91 and 92 deal with substantive rights and that being the case Section 10 should also be understood as dealing with a power vested in the Court to interfere with matters of substance. Even on this point two views can be had. A Full Bench of the Rangoon High Court in -- 'Arunachalam v. Valliappa', AIR 1938 Rang 130 (Z20) was inclined to take the view that an amendment to Section 10 by the Adaptation of Laws Order, 1937, dealt with an alteration in the form of procedure and did not interfere with substantive rights with the result that such an amendment has retrospective effect. To the same effect are the observations in -- 'Rehman v. Balchand', AIR 1937 Nag 6 (Z21).

25. Most of the cases cited at the Bar have been noticed above and though it is difficult to ascertain whether a particular decision is a judgment or not by reference and comparison to the discussion regarding the nature of similar or allied orders, the resulting conclusion is that if a decision satisfies the test of finality as laid down by the Supreme Court or is one concerning the merits of the controversy between the parties, then it must be termed to be a judgment appealable under Clause 15 of the Letters Patent. The Letters Patent itself in Clauses 39 and 40 uses the word "flnal judgment" and therefore it is clear that there can be a flnal and a preliminary judgment. As stated by Lord Selborne L. C. in '(1885) 14 QBD 627 (E)', to constitute an order a flnal judgment nothing more is necessary than that there should be a proper 'litis contestatio' and a final adjudication between the parties.

Even without a final adjudication it is possible to have a judgment for we find "Judgment" defined in Section 2(9), C. P. C., as the statement given by the Judge on the grounds of a decree or order. Unfortunately the definition in the C. P. Code does not govern the Letters Patent and we have to look for a satisfactory definition elsewhere. How difficult it is to define "judgment" is manifest from the large body of case law in India and so is the case in England as seen from page 205 of Halsbury's Laws of England, Hailsham Edn., Vol. 19. Confining ourselves to the question propounded in the case and without attempting to give an all comprehensive meaning for the word "judgment" we feel that in view of the principles laid down by the Supreme Court an order staying a suit under Section 10, C. P. C., is not a judgment. The reference is therefore answered in the negative.

Mack J.

25. I have had the advantage of perusing the judgment of my learned brother Govinda Menon J. I am in argeement that according to. the tests laid down by Sir Arnold White C. J. in '35 Mad 1 (FB) (G)' this order of stay under Section 10. C. P. C., by Krishnaswami Nayudu J. sitting on the Original Side would not be a "Judgment" within the meaning of Clause 15, Letters Patent, and would therefore not be appealable. Since 1910, the tests laid down in the Full Bench decision have been generally accepted though they have been made a spring board of much acute controversy and sought to be applied in our High Court. It is a decision by which apparently we are bound by precedent and practice.

27. The question referred to us raises a wide issue of the practical applicability of the tests laid down in '35 Mad 1 (FB) (G)' to all judicial pronouncements of a single Judge of a High Court, whether they be judgments or orders, final or interlocutory, as criteria of their appealability. In no domain of interpretation of statutory law has more sustained controversy raged in caselaw than over the meaning of the word "judgment" in Clause 15 of the. Letters Patent. Though the tests laid down in '35 Mad 1 (FB) (G)' have been generally accepted, there have been acute differences of judicial opinion as to how they should be applied in the Madras, Bombay and Calcutta Hign Courts. A view strongly opposed to the soundness of these tests reached its climax in a Rangoon Full Bench decision consisting of seven judges, 'AIR 1935 Bang 267 (B)', who all concurred with the strongly expressed view of Sir Arthur Page C. J. that the word "judgment" in this Clause of the Letters Patent means and is a decree in a suit by which the rights of parties at issue are determined. This view rested on the meaning of the word "judgment" as it was understood in England when the Letters Patent was enacted in 1862 and 1865.

Reliance was placed by Page C. J. on the well-known distinction between a judgment and an order emphasised by Cotton L. J. in '(1884) 12 QBD 342 at p. 345 (C)', a decision of the year 1884 and in '(1890) 25 QBD 465 (D)' of me year 1890, which took the view that there was a well-known inherent distinction between judgments and orders. Bowen L. J. in the latter decision laid down that a judgment was a decision obtained in an action and every other decision was an order. Page C. J. referred to more than 200 deci-sions cited at the Bar during the hearing of that reference. Since then, there have been many other Bench decisions expressing divergent views on this vexed question, the meaning of the word "judgment" in this statute in its practical judicial application many years after the Letters Patent was enacted. Learned advocates say there are now nearly 400 decisions on this subject many of them arising out of the tests laid down by Sir Arnold White C. J. We have experienced great difficulty in stemming the cataract of caselaw before us in a prolonged hearing of this reference for more than three days.

28. The earliest attempt to define the word "judgment" was by Bittleston J. in '3 Mad HCR 384 (W)', as any decision affecting the rights or interests of any suitor or applicant. Then came in 1872 the definition of Sir Richard Couch in '8 Beng. LR 433 (P),' as a decision, whether final or preliminary or interlocutory, which affects the merits of the question before the parties by determining some right or liability. In '35 Mad 1 (FB) (G)' this definition was considered too wide and I need' not reproduce here the tests laid down there, set out in my learned brother's judgment. I merely wish to emphasise that even in that decision trouble, and difficulty of interpretation were fore-shadowed as Sir Arnold White C. J. himself in -- 'Durgaprasada Naidu v. Mallikarjuna Prasada Naidu', 24 Mad 358 (Z22) in the year 1901 held that an order refusing stay of execution was not a "judgment" and not appealable.

But in '35 Mad 1 (FB) (G)', White C. J. who, with great respect, appears to have been in difficulties with the definition and the tests he was seeking to enunciate, said at page 8 that he would be prepared to hold that an appeal lay from an order refusing a stay of execution, though he took a contrary view in '24 Mad 358 (Z22)'. White C. J. also took a contrary View in 1908 in -- 'Kodi-ba Sahib v. Rahimatalla Sahib', 3 Mad LT 307 (Z23) in which he held that an order refusing to stay a "judgment" was not appealable under Clause 15 Letters Patent. Although in ' 35 Mad 1 (FB) (G)' he appeared to overrule his own previous judgments, another Bench of our High Court, Oldfield and Ramesam JJ. in -- 'Vairavan, Chettiar v. Ramanathan Chettiar', 14 Mad LW 701 (Z24) followed '24 Mad 358 (Z22)' and did not regard it as overruled by '35 Mad 1 (FB) (G)'. Did, with respect, those learned Judges tacitly disapprove the tests and the definition of Sir Arnold White C. J, in, at any rate, some respects?

29. Coming to more recent times, there was an attempt to define comprehensively the word ''judgment" in this context by Hidayatullah J. in. 'AIR 1952 Nag 357 (A)'. With the greatest respect, I think any attempt to define the word, "judgment" in Clause 15, Letters Patent, a difficulty rightly emphasised by my learned brother Govinda Menon J., can only lead to fresh controversy, intensifying it further in this domain of law-I venture to express the hope here that no further; attempt will ever be made by any Bench however full and however authoritative, as in my view to define the word "judgment" in the year 1954 as the framers of the statute intended the word to apply in 1862 or 1865 is attempting an impossibility.

30. I think with great respect the following considerations have been inclined to be overlooked by eminent Judges and Benches, who have differed so acutely on this subject:

(1) The Letters Patent was enacted at a time when legal procedure and in fact the whole English legal system was in a fluid state of ill-defined uncertainty until the Judicature Acts of 1873 and 1875 by the fusion of common law and equity sorted out a very confused state of affairs and placed the system of justice on a rational and defined basis. The old distinction between. "judgment" in an action and a decree, the corresponding word in Chancery, disappeared. It is significant that there was no attempt to define the word "judgment" in the first Civil Procedure Code in India in .1859 (Act 8 of 1859). For the first time the Code of Civil Procedure (Act 14 of 1882), after these Judicature Acts were enacted, denned "judgment" as "a statement given by a Judge on the grounds of a decree or order" a definition which the present Code still reproduces. In this connection Sir Arthur Page C. J. in 'AIR 1935 Rang 207 (B)', said this:

"Now, the construction which, in our opinion, is to be placed upon the term 'judgment' in the Letters Patent is so simple, plain and efficacious that it is difficult to understand why it has not hitherto found favour with any other High Court in India."

If I may attempt to supply an answer, it is simply this, that the word "judgment", a few years after the Letters Patent, underwent a great change in its meaning and connotation consequent on the Judicature Acts and we have them providing for appeals against Judgments or orders without any distinction passed by single Judges. It is as a result of this change that we have "judgment" defined even in the Civil Procedure Code of 1882 as including a decree or order. I myself have found it difficult to understand why the definition of the word "judgment" in the civil Procedure Code which regulates all appeals not only from the lower mufassal Courts to the High Court but also appeals from the High Court to the Privy Council, should not have been adopted as the meaning of the word "judgment" in Clause 15 of the Letters Patent by progressive judicial interpretation. As it appears to me, the word "judgment" should not have different meanings in two different statutes so allied to each other as the Letters Patent and the Civil Procedure Code. I can see no great difficulty in this interpretation, for an appeal is in substance one against the statement of reasons underlying a decree of an order, though technically it is an appeal against the result embodied in what is called a decree.

(2) The manner in which provision has been made in England for appeals against orders of King's Bench and Chancery Judges sitting singly makes no distinction between judgments or

orders. It is only necessary in connection with orders of stay passed under Section 10, C. P. C., to refer to Section 31 (1) (i) of the Supreme Court of Judicature (Consolidation) Act, 1925. According to this statutory provision, no appeal shall lie without the leave of the Judge or of the Court of appeal from any interlocutory order or interlocutory Judgment made or given by a Judge except in the following cases, namely :

1. Where the liberty of the subject or tho custody of infants is concerned;

2. where an injunction or the appointment of a receiver is granted or refused.

This is one of the many restrictions on the right of appeal. Throughout there is no distinction between a judgment or an order for purposes of appeal. The statutory criterion of appealability in an interlocutory order or judgment, apart from the two cases in which a right is accorded, rests upon leave either of the Judge or of the Court of appeal. In other words, it is some doubtful point of law or some infirmity in the order, which becomes the criterion of appealability.

(3) Order 43 of the Civil Procedure Code gives a right of appeal against certain orders under the provision of Section 104 of the Code itself. An order staying a suit under Section 10, C. P. C., is not an appealable order. It is however possible for a party aggrieved by such an order of a District Judge or a Subordinate Judge, which is not appealable as of right, to obtain redress against an order manifestly wrong on a point of law or jurisdiction through the avenue of revision provided by Section 115, C. P. C. Bitting on the Original side of the High Court, I must confess to chafing occasionally over interlocutory orders passed by single Judges on the Original Side being more susceptible to appeal than orders passed by District Judges and Subordinate Judges in the mufassal. If the extreme view of Page C. J. is to be adopted and all interlocutory orders passed by single Judges were made non-appealable, the result would be that a party would have no relief against an interlocutory order passed by a single Judge oh the Original Side, however, erroneous the order may be and however injurious the consequences to the party, there being no provision for an order such as this being set right in revision.

31. I have set out these considerations, which are not irrelevant to the question we have been asked to answer. It does not seem reasonable that Benches and Pull Benches should spend days on a determination as to whether a particular type of order under a particular section of the C. P. C. is or is not a "judgment" for purposes of appeal under Clause 16 of the Letters Patent, whereas a decision on the merits can generally "be given in a few minutes. As it appears to me, a simple solution, so that the shades of that most eminent Judge Sir Arnold White round whose attempt to define this word "judgment" acute controversy has raged for forty years may rest in peace, appears to lie in the direction of a simple Union legislation replacing Clause 15 of the Letters Patent by a provision for a right of appeal on the lines of the English Judicature Act. Left to myself in this matter and pending such legislation, I would myself have no hesitation in applying the meaning of the word "judgment" in the Civil Procedure Code to the word "judgment" in Clause 15 of the Letters Patent and allowing appeals against all judgments and orders. There is provision under Order 41, Rule 11 under which an appellate Court can dismiss an appeal, including one against any judgment or order of a single Judge, after hearing the appellant or his advocate without notice to the other side.

There is, therefore, in our appellate statutory legislation this important safeguard against the filing of frivolous and vexatious appeals, calculated to stay and hinder the trial of a suit. I can myself really see no substantial distinction between the admission by an appellate Bench of an appeal against an interlocutory order or judgment of this kind and an appellate Court granting leave on application filed. According to this view, admission by an appellate Court would be the criterion of appealability, and, pending legislation on this matter, the same practical effect can be achieved as under Section 31 of the English Judicature Act of 1925. I can myself visualise a stay under Section 10, C. P. C.. which may be so bad on the face of it as to warrant interference in appeal without some grave injustice being done. I would with much diffidence, therefore, give expression to this view in answer to this reference that appealability should ultimately depend on the order itself and it would be an extremely difficult matter to separate into rigid categories judgments or orders, which are and are not technically appealable.

Chandra Reddy, J.

32. The question that is referred to the Full Bench is whether the order made under Section 10, C. P. C., or any other provision of law for stay of the trial of a suit is a "judgment" within the meaning of the term in Clause 15 of the Letters Patent. The facts giving rise to the reference are set out in the judgment of my learned brother, Govinda Menon J., and it is not necessary for me to reiterate the same. I am in agreement with the conclusions reached by him but I would like to state my reasons for reaching the same conclusion.

33. The answer to the question turns upon the effect to be given to Clause 15 of the Letters Patent of the Madras High Court which is the same for the Bombay and Calcutta High Courts and which corresponds to Clause 13 of the Rangoon High Court and Clause 10 of the Allahabad, Lahore, Nagpur, etc., High Courts. Clause 15 runs thus: "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 revi-sional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of cr'minal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government, of India Act, and that notwithstanding anything heremoefore 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 Section 108 of the Government of India Act, made (on or after the 1st day of February 1929) in exercise of appellate jurisdiction in respect of a decree or oraer 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 3s 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."

34. This clause has come up for consideration in almost all the High Courts and the controversy that has been raised with regard to the interpretation of the expression "judgment" within the meaning of this Clause has been raging for over eight decades back and is not yet set at rest. The first tirne that an attempt was made to ascertain the meaning of the word "judgment" was in --'3 Mad H. C. R. 384 (W)'. Bittleston and Holloway JJ. defined "judgment" as "a decision or determination affecting the rights or the interest of any suitor or applicant". They further remarked that the language of Clause 15 was so general that it was impossible to prescribe any limits to the right of appeal founded upon the nature of the order or the decree appealed from. There an appeal was preferred against an order of a Judge refusing to give leave to file a suit on the Original Side in a case where only a part of the cause of action arose within the Original Jurisdiction of the Court. On the question being raised whether the appeal was competent, it was answered in the affirmative. There can be little doubt that the decision on the merits is a correct one. But it was only to the general remarks as regards the limits to the right of appeal that exception was taken subsequently.

35. This case came in for comment in the oft quoted case of -- '8 Beng LR 433 (P)'. Sir Richard Couch C. J. and Markby J. laid down the dictum that "judgment" is only a decision which affects the merits of the question between the parties by

determining some right or liability. This formula has had a mixed reception in various Courts to which I will have an occasion to refer presently.

36. The next case of the same Court to be noticed and which formed the basis of some of the decisions of that Court and other Courts is --'13 Beng LR 91 (U)'. Couch C. J. who was a party to -- '8 Beng LR 433 (P)' and Pontifex J. held that an order refusing to rescind the leave to sue granted under Clause 12 of the Letters Patent was a "judgment" within the meaning of Clause 15 and as such appealable.

37. The judgment of the Privy Council in -- '9 Cal 482 (Z12)" where their Lordships decided that an order of a single Judge of the High Court of Calcutta refusing to transmit the order of the Privy Council for execution was appealable has also made some contribution to the discussion on the subject.

38. The next stage in this controversy is reach-ed when we come to -- '35 Mad 1 (FB) (G). A reference was made to the Pull Bench for a decision whether an order of a single Judge on the Original Side refusing to frame an issue asked for by one of the parties was a "judgment" within Clause 15 of the Letters Patent and as such appealable in view of the contrariety of opinions expressed by this Court and other High Courts. Most of the cases bearing on the topic came under review and a satisfactory solution for ascertaining whether an order is a judgment or not was sug-gested by Sir Arnold White C. J. and Krishna-swami Aiyar J.

39. The following passage which is often referred to contains the tests formulated to find out whether an order is a "judgment" within the scope of Clause 15 of the Letters patent or not :

"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.

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."

40. It is clear from, this passage that it is only the first and the last category that can attract the first provisions of Clause 15. This definition of a "judgment" has been since accepted by this Court. The Calcutta High Court has shown its marked leaning to this construction of "judgment" in several of the cases and so also the Lahore High Court. The observations of Mukherjee J. in -- 'AIR 1935 Cal 35 (J)' discloses one such instance of this inclination and runs thus:

"To remove the incongruity which appears in the decisions of this Court and to lay down some definite rule by which orders might be tested when it has to be determined whether or not they are 'judgments' within the meaning of the Clause, this Court will some day have to abandon its fond adherence to the antiquated definition of Couch C. J. and boldly acknowledge its allegiance to the tests laid down by White C. J."

41. But a dissenting note is struck by the Full Bench of the Rangoon High Court in -- 'AIR 1935 Rang 267 (B)'. The learned Judges of the Rangoon High Court gave a very restricted meaning to the word "judgment" in CL 13 of that High Court which I have already said corresponds to Clause 15 of the Letters Patent of our Court. According to them a judgment was synonymous with the decree in a suit by which the rights of the parties in the suit are determined. Page C. J. who deli-vered the opinion of the Pull Bench thought that the judgment of Sir Arnold White C. J- did not contain the correct criterion for deciding whether an order is a "judgment" or not. The conclusions of the learned Judge are broadly based upon the rulings of the English Courts and some of the decisions of the Privy Council which had to construe Clauses. 39 and 40 of the Letters Patent. I must say that the pronouncements of the English Court cannot furnish any analogy for the reason that the two expressions "judgment" and "decree" have been used as equivalcut terms, the judicial pronouncement being known in common law as judgments and as decrees in Chanceries. As regards the Privy Council cases relied on by Page C. J. it has to be observed that the Judicial Committee was only dealing with the effect to be given to Clause 39 of the Letters Patent which has reference to final judgment, decree or order. Therefore the opinion expressed by the Privy Council in those cases cannot be treated as an authority for the proposition that the expression "judgment" in every Clause of the Letters Patent should be understood only as a decree. The observations of their Lordships should only be understood with reference to the expression "final judgment".

42. Substantially the same view as in -- 'AIR 1935 Cal 35 (J)' was expressed by the Allahabad High Court in -- 'AIR 1936 All 620 (2) (N)' and some of the rulings of the Nagpur High Court are in accord with the rule stated in the Rangoon and Allahabad cases. In our opinion the scope of that expression is wider than thought of in those cases. The Lahore High Court has preferred to accept the reasoning in -- '35 Mad 1 (FB) (G)' as correct and refused to share the view of the Rangoon and Allahabad High Courts.

43. So far as this Court is concerned, the authority of -- '33 Mad 1 (PB) (G)' has been accepted unquestioningly and the tests enumerated in that case have been applied in deciding the question whether a particular order is a judgment or not. It looks to me that the tests propounded by the Full Bench are sound and can be safely taken as guide for the determination of the question. That apart, on the principle of 'stare decisis' we must accept the correctness of the statement of law contained in -- '35 Mad 1 (FB) (G)'.

44. The difficulty arises in applying the principles enunciated in that case to individual cases, that is to say, whether an order in a particular case satisfies the tests laid down by Sir Arnold White C. J. In answering the reference, I must therefore see whether an order under Section 10 fulfils either of the two conditions laid down in

-- '35 Mad 1 (PB) (G)'. Obviously it cannot come under the third rule, namely, 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. That governs only cases like an application for an interim injunction or for the appointment of a receiver as pointed out by White C. J. and can have no application to the stay of the trial under Section 10, C. P. C. We have therefore to fall back only upon the first test, namely, whether the order puts an end to the suit or a proceeding so far as the Court before which the suit or proceeding is pending is concerned or whether the non-compliance with it results in terminating the suit or the proceeding. Here again there is divergence of judicial opinion.

45. An identical question was raised in -- 'AIR 1933 Bom 85 (T)'. It was answered in the affirmative by Sir John Beaumont C. J. and Black-well J. The basis of the decision of Blackwell J. who delivered the leading judgment was -- '13 Beng LR 91 (U)' and -- 'AIR 1920 Cal 685 (V)'. So far as the first of the two cases is concerned, it has hardly any bearing on the issue as to the character of the order under Section 10. The facts in-- '13 Beng LR 91 (U)' were similar to those in -- '3 Mad HCR 384 (W).'. The learned Judges in-- '13 Beng LR 91 (U)' were inclined to agree with the conclusions of Bittleston and Holloway JJ. in -- '3 Mad H C R 384 (W)' though they would not accept all the reasons given in support of that decision. ' According to the judgment in -- '13 Beng LR 91 (U)' an order refusing to rescind leave to sue granted under Clause 12 of the Letters Patent has the effect of giving jurisdiction to the Court which it otherwise would not have. Such an order belongs altogether to a different category and cannot furnish any analogy to an order under Section 10, C. P. C.

46. In regard to -- 'AIR 1920 Cal 685 (V)', the point arose whether an order refusing to stay legal proceedings under Section 19 of the Arbitration. Act was a judgment within the meaning of Clause 15 of the Letters Patent. In the opinion of the learned Judges who decided that case it was a "judgment" for the reason that it virtually determined that the controversy between the parties must be decided by the High Court and not by arbitration. It is unnecessary to consider whether the principle stated there is sound or not having regard to the distinction between the two orders. When once the provisions of Section 19 of the Arbitration Act are invoked, the jurisdiction of a Court to render a judgment is put an end to. After the arbitrators given their award, there is nothing more to be done by the Court. Thus it is seen that neither of the two cases is really helpful in solving the problem whether an order under Section 10 is a "judgment" as contemplated in Clause 15 of the Letters Patent. Those cases cannot therefore furnish any basis for the conclusion reached by Blackwell J.

The learned Judge thought that by refusing the stay of the trial of the suit the appellant was deprived of his right to have the suit in the Court stayed in order that the matter might be litigated in the other Court and it had also the effect of conferring jurisdiction upon the High Court to try that case and that it involved an obligation upon the defendant to come to the High Court to submit to its jurisdiction and contest the case. This ratiocination does not commend itself to me. An order under Section 10 does not prohibit the entertainment of the suit. It is only the trial of the suit that is temporarily suspended and cannot therefore touch the right of the Court to entertain the suit. I think it is the misconception as to the effect of that order that led the learned Judge to this conclusion. Beaumont C. J. puts the same idea thus:

"Therefore, the decision of the Judge under Section 10 really determines the right of the plaintiffs to sue in this Court."

As I have already said, I find great difficulty in sharing this view.

47. This case was followed by another Bench of the same Court in -- ' (X)' by Chagla C. J. and Gajendragadkar J. It is

observed by Chagla C. J. that as the matter was not 'res integra' having been concluded by the decision of the Court in -- 'AIR 1933 Bom 85 (T)', they were not prepared to go deeper into the matter and consider soundness of the point debated. They regarded the decision in -- 'AIR 1933 Bom 85 (T)' as binding on them and saw no reason, to have it reconsidered. In -- 'AIR 1935 Cal 1 (Y)', although the contention that no appeal lay from an order refusing to stay the suit was dot pressed and was not necessary for the disposal of the points arising in the appeal, Panckridge J. remarked that the reasoning of the Judges in --'AIR 1933 Bom 85 (T)' was conclusive. He thought it right to state his opinion on that point in case the matter was raised in a future appeal. Beyond this observation there is no discussion at all. It is thus seen that no additional reasons are given, either in -- ' (X)' or by Panckridge J. in -- 'AIR 1935 Cal 1 (Y)' in support of their conclusion.

48. In 'AIR 1923 Mad 88 (1) (R), Plumps J. has field that by relusing to stay under 6. 10, C. P. C., the Court had assumed jurisdiction to proceed with the trial of the suit which it had not. An opposite opinion was expressed by the Rangoon High Court in -- 'AIR 1935 Rang 73 (1) (Z16)'. It was remarked by Page C. J. with whom Mya Bu J. agreed that an order under Section 10 did not finally decide the rights ot the parties or put an end to the suit or a proceeding so far as the Court before which the suit or proceeding was pending was concerned and that

"the effect of the order is merely to stay further proceedings in the suit until after the appeal belore His Majesty in Council has been determined.

49. In -- ' (Z11)', the learned Chief Justice and

Venkatarama Aiyar J. dismissed an appeal as incompetent against an order

refusing to transfer a suit from the file of the City Civil Court to the High Court and to stay the trial of a suit pending in the Hign Court until the disposal ot the suit in the City Civil Court. The learned Chief Justice has remarked that there is abundant authority for the position that an order staying is not a judgment within the meaning of Clause 15 of the Letters Patent.

50. I have lastly to refer to a ruling of the Supreme Court in -- ' (O)'. The Supreme Court confirmed the decision of

the Calcutta High Court which held that an order for a transfer of a suit under Clause 13 of the Letters Patent was not a judgment within the meaning of Clause 15 of the Letters Patent and hence no appeal lay against such an order. Their Lordships considered that the order under appeal was not a judgment for the reason that it neither affected the merits of the controversy between the parties in the suit itself nor terminated the suit on any ground. In their Judgment -- 'AIR 1924 Mad 90 (Q)', which, purporting to follow -- '35 Mad 1 (PB) (G)', held that an order for transfer under Clause 13 Of the Letters Patent was subject to an appeal was wrongly decided. It is stated by the Supreme Court that -- 'AIR 1924 Mad 90 (Q)' missed the essential difference between an order rescinding or refusing to rescind leave to sue granted under Clause 12 of the Letters Patent and one withdrawing a suit from a subordinate Court to the High Court under Clause 13 of the Letters Patent and which distinction was kept in view in -- '35 Mad 1 (FB) (G)'.

Although the learned Judges of the supreme Court have not expressed their preference to the principle adumbrated in -- '35 Mad 1 (PB) (G)', in considering the conflicting views, the tests propounded by them seem to be more in accordance with those formulated by Sir Arnold White C. J. in -- '35 Mad 1 (PB) (O)'. The remarks of Mukherjea J. who delivered the opinion of the Court are apposite:

"An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer, under Clause 13 of the Letters Patent is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter to be taken only from tne stage at which they were left in the Court in which the suit was originally filed."

51. Tne second of the reasons manes it abundantly clear that unless & until the order sought to be appealed against effectvely puts an end to or terminates the suit in which tne order has been made cannot be appealed against. This seems to me to be in conformity with the first of the tests formulated in -- '35 Mad 1 (FB) (G)'. In my opinion, the latter part of the reasoning of the Supreme Court applies with, equal force to the proceedings under Section 10, C. P. C.

52. Mr. Ramachandra Aiyar, learned counsel for the appellant, attempted to distinguish --'AIR 1953 SC 193 (O)' on tne ground tnat while the order for transfer is not made by the Court in which the suit is pending that under Section 10, C. P. C., is passed by the Court in which the suit is pending. As I have already said tne first part of the reasoning is not relevant and it is only tne second test namely whether tne order puts an end to tne suit or not that is material in tne present enquiry. According to Mr. Ramachandra Aiyar, the distinction between an order under 01. 13 of tne Lettera Patent and one under Section 10, C. P. C., is that in the former case the suit is not put to an end to nor is there determination of any of the rights or liabilities of the parties in the suit, whereas the effect of order under Section 10, C. P. C., in substance terminates the suit in which the order of stay is made as it is the judgment in the other suit that would govern the rignts of the parties. In that sense the order under Section 10 gives an effective disposal.

53. In support of this proposition he relied on -- '34 Bom 1 (Z3)'. I do not think this case takes the appellant very far. There a petition to revoke a submission to arbitration was dismissed. In an appeal against that judgment a preliminary objection was raised that the appeal was incompetent. This objection was overruled on the ground that the party was compelled to submit to arbitration and was deprived of a right to have the suit decided in an ordinary way and such an order amounted to a judgment which was appealable under Clause 15 of the Letters Patent. That does not hold any analogy and is of no help in the determination of the question here. All that is contemplated under Section 10, C. P. C., is to stay all proceedings in the later suit pending disposal of the earlier one provided the requisite conditions are fulfilled. It does not in any way finally dispose of the suit. The trial of the suit would commence after the decision is obtained in the other suit. For the application of Section 10, C. P. C., identity of reliefs is not required. It is not in every case that all the reliefs asked for in both the suits will be the same. In such a case after the disposal of the earlier suit the trial of the later suit will begin and questions relating to the reliefs not Involved in the other suit will have to be gone into in the later suit. There may be cases in which all the reliefs are identical and the doctrine of 'res judicata' may be invoked. But the principle to be evolved should govern the former category of cases as well. For instance in this very case there are some reliefs which cannot be granted in the other suit. The trial in the later instituted suit commences only after the judgment in the earlier suit has been obtained, The fact that some of the reliefs to be granted in the later suit flow from the decision of the earlier suit does not make any difference as regards this question.

54. In this context the remarks in -- 'AIR 1929 Mad 197 (Z19)' are pertinent. The learned Judges observed that a mortgage suit does notcome to an end with the passing of the preliminary decree and tnat

"so far from the preliminary decree putting an end to the suit, execution cannot begin until after the final decree is passed, and the property cannot be put up for saie until then."

The same is the case with a suit stayed under Section 10, C. P. C. As already pointed out, alter the judgment is delivered in me earlier suit, the trial of the latter suit is proceeded with. I cannot therefore give effect to the contention urged on behalf of the appellant.

55. Nor does -- '(1882) 9 Q B D 621 (Z14)' render any heip to the appellant because Section 19 of the Judicature Act of 1873 conferred a right of appeal upon a suitor against a judgment or a final order.

56. It was next urged by Mr. Ramchandra Aiyar that Section 10, C. P. C., touches the authority of a Court to decide a case in that it prohibits the Court which passes the order from trying the suit and thus it raises a question relating to Jurisdiction. In support of the stand taken by him he called in aid -- 'AIR 1923 Mad 83 (1) (R)', to which reference has already been made. The learned Judge distinguished -- 'Sultanat Jahan Begam v. Sundarlal', AIR 1920 All 197 (2) (Z25)' on the ground that there it was a case of stay whereas the case before him was one of refusal to stay. That being so, I do not see how that case would help the appellant. Even otherwise the 'ratio decidendi' does not appear sound. 'AIR 1921 Cal 34 (Z1)' was also cited for the position taken on behalf of the appellant. I do not think that it has really any bearing.

The questions that were raised in that case related to the interpretation of Order 23, Rule 1, C. P. C,. namely whether leave granted on a gorund which is not of the same nature as the formal defect was one without jurisdiction and whether a fresh suit instituted in pursuance of such leave was competent and whether the Court trying the subsequent suit could go into the question of juris-diction of the Court that granted leave under Order 23, Rule 1, C. P. C. These questions were answered in the negative. In dealing with this subject the learned Judges remarked thus :

"The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction and when there is jurisdiction of the person and subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in -- 'Sukhlal v. Tarachand', 33 Cal 68 (Z26) and -- 'Kosh Mahomed v. Nazir Mohamed', 33 Cal 352 (Z27); see also the observations of Lord Parker in -- 'Raghunath v. Sunderdas', AIR 1914 PC 129 at p. 132 (Z28). But the distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion (see -- 'Mabulla v. Hemangini', 11 Cal LJ 512 (Z29) and -- 'Moser v. Marsden', 1892-1 Ch 487 (Z30), ' where the term Jurisdiction is used to denote the authority of the Court to make an order of a particular description). We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be case legally before the Court and a hearing as well as a determination."

These observations far from helping the appellant go to show that proceedings under Section 10, C. P. C., do not realty Dear on the jurisdiction of the Court either to entertain tne suit or to try it. In my considered opinion Section 10 only regu-lates the procedure to be adopted in tne case of suits coming within its purview and it does not really touch the substantive rignts of tne parties-as argued by the counsel for tne appellant. In --'Gangaprasad v. Mst. Banaspatl', AIR 1937 Nag 132 (Z31), Bose J. ruled that Section 10, C. P. C., only Jays down a rule of procedure and does not bar the institution of a suit. The same view was taken in -- 'AIR 1938 Rang 130 (Z20)' by the Pull Bench of the Rangoon High Court in discussing the question whether the Adaptation of Laws Order in respect of Section 10, C. P. C., is retrospective. It was laid down there that Section 10 indicates only a rule of procedure and therefore retrospective. I ex-press my respectful accord with tne principles laid down in this case and hold that Section 10 regulates only the procedure applicable to suit envisaged there and does not deal with the substantive law. It does nob confer any legal right on any of the parties. It is a well established principle of law that a party cannot acquire a vested right or interest in matters of procedure. If Section 10 prescribes only procedure applicable to suits of the nature mentioned therein, it means that it neither affects the merits of the question at issue between, the parties by determining some right or liability nor puts an end to the suit or proceeding directly or indirectly. Viewed in that light it is not a judgment within the meaning of Clause 15 of the Letters Patent. 'Simrathmull v. Jugraj', (Z32) is an authority for the position that an order, which only regulates the procedure according to which the suit is to be tried, is not appealable under Clause 15 of the Letters Patent.

57. On a consideration of the foregoing fac-tors, I have reached the conclusion that an order under B. 10, C. P. C., or any other law for stay of the trial of a suit is not a "judgment" and therefore no appeal lies against it under Clause 15. of the Letters Patent. The reference is answered accordingly.


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