S.K. Mukherjea, J.
1. This is an application for grant of a certificate under Articles 133(1)(a) and 133(1)(c) of the Constitution for appeal to the Supreme Court. The order of the appellate Court is an order of dismissal of an appeal from an order made by a learned single Judge by which his Lordship corrected an earlier order he had made. The order as corrected reads : 'Leave is granted to the petitioner to withdraw this suit with liberty to file a fresh suit on the same cause of action .............. and it is further ordered that the plaintiff company do pay to the defendant company its costs of and incidental to this application assessed at Rs. 170/- and this Court doth certify that this is a fit application for employment of advocate.'
2. As by the order leave was given to withdraw the suit and nothing further remained to be done by the Court in the matter, we are of opinion that the order is a final order.
3. The next question which arises is whether the order and judgment of the appellate Court is an order and judgment of affirmance. The order is an order of dismissal, of the appeal on merits. In our opinion, by the order of dismissal, the decision of the learned single Judge is necessarily affirmed within the meaning of Article 133(1) of the Constitution. In T. Rajaram v. Radhakrishnayya, : 2SCR452 , the Supreme Court held that in determining the question as to whether the appellate decree passed by the High Court affirmed the decision of the trial Court, the appellate decree must be considered as a whole in relation to the decision of the trial Court similarly considered as a whole. That is the proper approach in applying the test of affirmance. If there is a variation made in the appellate decree in the decision of the trial Court it is not a decree of affirmance and this is not affected either by the extent of the variation made or by the fact that the variation is made in favour of the intending appellant and not against him. The term 'decision' in the context of Section 596 of the old Civil Procedure Code, a provision which is in pari materia with Article 133, was construed by the Privy Council in Rajah Tasadduq Rasul Khan v. Manik Chand, (1903) 30 Ind App 35 (PC). Lord Dayey delivering the judgment of the Court said:
'There is no definition of the word 'decision' in the Civil Procedure Code, but there is a definition of the word 'decree'. It says 'decree' means the formal expression of an adjudication upon any right claimed or defence set up in Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal.' Then 'judgment' is defined to mean 'the statement given by the Judge of the grounds of a decree or order'. Therefore, their Lordships have two things: they have a decree which decides the suit, and they have the word 'Judgment', meaning the statement of the grounds upon which the learned Judge or the Court proceeds to make the decree.
4. Mr. De Gruyther appears to wish to give the word 'decision' the same meaning as the word 'judgment' and he says that it is necessary that the appellate Court should not only affirm the decree made by the Court below, but should also affirm the grounds of fact upon which that judgment was passed. Their Lordships cannot come to that conclusion, they think that the natural, obvious and prima facie meaning of the word 'decision' is decision of the suit by the Court, and that that meaning should be given to it in the section.
The word 'judgment' in Article 133 has been construed to mean a decision finally determining the rights of the parties in the proceeding and not as defined in the Civil Procedure Code : Inda Devi v. Board of Revenue, U. P. Allahabad, ATR 1957 All 116. In Kanak Sundar v. Ram Lakhan, : AIR1956Pat325 (FB) it was held by a Full Bench of the Patna High Court that a judgment will be one of affirmance if it has affirmed the actual decision of the Court immediately below even if it has based its decision on grounds different from those given by the latter Court. Relying on the decision of the Privy Council reported in 30 Ind App 35 (PC) the Court held that the word 'decision' in Art. 133(1) is equivalent to the word 'decree*.
5. In Union of India v. Kanhaya, it was said that a judgment is affirmed when the decree is neither reversed nor modified. There is, therefore clear authority for saying that a decree or order dismissing an appeal on merits, necessarily affirms the decision of the Court immediately below. Mr. Somnath Chatterjee appearing on behalf of the petitioner, relied on an unreported decision of a Division Bench of this Court in Appeal No. 200 of 1960 (Cal.) (Sm. Umarani Bnse v. Sm. Bina Sarkar). The judgment was delivered on 9-7-1970. In course of the judgment, A. N. Sen, L, said: 'A decree or a judgment passed by the appellate Court may not be one of affirmance within the meaning of Article 133 of the Constitution even if the reliefs granted by the trial Court are affirmed by the judgment of the appellate Court'. In coming to this conclusion, the learned Judges relied on the case of : 2SCR452 . It may be pointed out that in the case with which the Division Bench was concerned the appellate Court, by its decree dismissed the appeal on merits. The Court found in favour of the appellant on one particular issue which made no difference to the result of the appeal.
6. In : AIR1956Pat325 (FB), a case to which we have already referred it was said: 'a decree is one and must be taken as one unit. It would be against the definition that has been given to it if it is held that there are as many decrees in a suit as there are subject-matters decided therein. Each subject-matter decided by a Court in a suit cannot constitute a separate decree in that suit.'
7. We are in respectful agreement with those views.
8. With great respect, we are unable to agree with the views taken by the learned Judges in Appeal No. 200 of 1960, D/-9-7-3970 (Cal.). In our opinion, the case reported in : 2SCR452 does not support the view their Lordships took of the matter. Be that as it may, the judgment, being one of a Division Bench of this Court, should have been binding on us and having disagreed with the view expressed in that case, we should have reported the matter to the learned Chief Justice for being referred to a larger Bench for decision. The reason why we do not do so is that their Lordships do not seem to have considered an earlier Bench decision of this Court where the Supreme Court case on which their Lordships relied was fully considered although that decision appears to have been placed before their Lordships.
9. The earlier decision in question was given in Vidyasagar Cotton Mills Ltd. v. Nazmunncssa Begum, : AIR1964Cal335 . There, Bose, C. J. speaking for the Court observed: 'A point was raised that since the reasoning given by the learned trial Judge S. P. Ma, J. and the Division Bench in arriving at the conclusion that the respondent is entitled to an order of rectification are not on the same lines, the judgment delivered by the Division Bench is not a judgment of affirmance and therefore the petitioner is entitled to a certificate as a matter of course, but in view of the decision of the Supreme Court reported in : 2SCR452 , we do not think that this point is of any substance. The ultimate conclusion of the Division Bench is that the order of the learned trial Judge should be upheld and the appeal dismissed with costs. So there can be hardly any room for doubt that the judgment of the Division Bench is a judgment of affirmance.'
10. We are in entire agreement with the views expressed by the learned Chief Justice in that case. The judgment is, therefore, in our opinion, a judgment of affirmance.
11. It only remains for us to consider whether any substantial question of law is involved in the appeal. The only point of law which came up for decision was at what stage a Judge loses his jurisdiction to recall, correct or vary an order. It was contended by Mr. Chatterjee appearing on behalf of the appellant that the Judge loses his jurisdiction to vary an order after he has signed it. Learned counsel appearing for the respondent contended that an order can be recalled or varied at any stage before it is filed. The original and the Appellate Courts upheld the respondent's contention. The view that the Court retains its jurisdiction to recall or modify an order at any stage before it is filed is supported by a largo number of decisions -- Indian and English, some of which have been cited in the judgment of the appellate Court. It is true that the Supreme Court or the Privy Council, as far as we are aware, has not pronounced on this question. Nevertheless, the answer is so clear and the view taken by the Appellate Court has been so universally accepted that even though the Supreme Court has not pronounced on the question, we arc unable to hold that it is a substantial question of law. There is a difference between a question of law and a point of law. A question which has been answered ceases to he an open question. In this case, the question has been answered in only one way as far as we know. We are therefore unable to agree that any substantial question of law is involved in this appeal. Moreover, in our opinion, there is nothing in this case which makes it a lit one for appeal in the sense of Article 133(1)(c) of the Constitution.
12. In the result, the application fails. The applicant will pay the costs of this application. Certified for two counsel as against their respective clients.
13. I agree.