1. The respondent was the 5th defendant in a suit in which a decree had been granted in favour of the 3rd plaintiff. He put in an application for leave to appeal as a pauper to the High Court. That application was out of time by a few, days. The application for excusing the delay and for the admission of the appeal was heard ex parte by Lakshmana Rao, J., who excused the delay and admitted the appeal and gave the necessary directions upon the question of pauperism. The appellant here, who was the successful 3rd plaintiff in the suit, put in an application before Lakshmana Rao, J. for the setting aside of his previous order excusing the delay. Lakshmana Rao, J. saw no reason for setting aside his previous order; and it is with regard to that order that this appeal under Clause 15 of the Letters Patent is before us. A preliminary objection has been taken by the respondent that no appeal lies from such an order under Clause 15 of the Letters Patent: and reference has been made to the well known case of Tuljaram Row v. Alagappa Chettiar 35 M 1 : 8 Ind. Cas. 310 : (1910) M W N 697 : 8 M L T 453 : 21 M L J 1, where, on the question as to what is a 'Judgment which under Clause 15 of the Letters Patent is an appealable one, Sir Arnold White, C.J. laid down the test as: 'Whether its effect is to put an end to the suit or proceeding so far as the Court is concerned... even if it dees not affect the merits of the suit or proceeding and does not determine any question of right raised.'
2. If it merely allows the proceedings to go on, then it is not a final 'judgment' which can be the subject of an appeal under Clause 16 of the Letters Patent. This decision has been applied in a number of other later cases in the Madras High Court although not dealing with an order precisely similar to this. The effect of the order in the present case is that the appeal which would otherwise not have been admitted was, by the excusing of the delay, allowed to proceed. The order, therefore, was not one which put an end to a proceeding but on the contrary it enabled it to go on. A case in the Calcutta High Court which is similar to the present one is Brojo Gopal Roy Burman v. Amar Chandra Bhattacharya : AIR1929Cal214 , a decision of a Bench of three Judges consisting of Rankin, C.J. and Suhrawardy and Graham, JJ. There a second appeal was presented out of time and the appellants obtained a rule calling upon their opponents to show cause why the appeal should not be registered. The two Judges composing the Bench who heard the rule differed in opinion. The rule was made absolute in accordance with the opinion of the Senior Judge. From this order an appeal was lodged under Clause 15 of the Letters Patent which was exactly similar to Clause 15 of the Letters Patent of the Madras High Court. It was there held that the order allowing the second appeal to be presented out of time was not a 'judgment' within the meaning of Clause 15 of the Letters Patent although this opinion was come to by Rankin, C.J. with some hesitation. Dealing with the matter he says on p. 13: Page of 56 C.--[Ed.]
On the whole and not without some doubt I think that the mere circumstance that an order puts in peril the finality of a decision given in the respondent's favour does not of itself make that order a 'judgment within the meaning of Clause 15 of the Letters, Patent. The same might be said of an order restoring a suit under Order IX, Rule 9, and with much greater reason' The same might be said of any order giving leave to appeal or granting a certificate that a case was a fit one to be taken on appeal. Whether any distinction can logically or practically be maintained between an order setting aside an abatement and an order restoring a suit after dismissal for default may well be doubted. But in the case now before us the order complained of does not set anything aside. It operates merely to declare that the appeal may be entertained.
3. I agree with the view there expressed by Rankin, C.J. and in my opinion, therefore, the preliminary objection raised here must be upheld and the appeal dismissed without costs.
4. I agree with my Lord the Chief Justice.