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Kishen Pershad Panday Vs. Tiluckdhari Lall and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal182
AppellantKishen Pershad Panday
RespondentTiluckdhari Lall and ors.
Cases ReferredKalisunderi Debi v. Hurrish Chunder Chowdhry I.L.R.
Excerpt:
appeal - letters patent, clause 15--appeal from order of judge in privy council department refusing to extend time for furnishing security for costs--'judgment,' meaning of--rule 33, rules of 1st september 1877--code of civil procedure (act xiv of 1882), section 602. - .....clause 15 of the letters patent from an order passed by mr. justice macpherson sitting in the privy council appeal department, refusing to extend the time prescribed by law within which an appellant is required to furnish security for the costs of the respondent, and directing that the appeal to her majesty in council be struck off the file, by reason of such security not having been given within the prescribed time.2. a preliminary objection is raised on behalf of the respondent to the effect that no appeal lies under clause 15 of the letters patent against the order complained of.3. clause 15 of the letters patent is as follows: 'and we do further ordain that an appeal shall lie to the said high court of judicature at fort william in bengal, from the judgment, not being a sentence.....
Judgment:

Ghose, J.

1. This is an appeal under Clause 15 of the Letters Patent from an order passed by Mr. Justice Macpherson sitting in the Privy Council Appeal Department, refusing to extend the time prescribed by law within which an appellant is required to furnish security for the costs of the respondent, and directing that the appeal to Her Majesty in Council be struck off the file, by reason of such security not having been given within the prescribed time.

2. A preliminary objection is raised on behalf of the respondent to the effect that no appeal lies under Clause 15 of the Letters Patent against the order complained of.

3. Clause 15 of the Letters Patent is as follows: 'And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal, from the judgment, not being a sentence or order passed or made in any criminal trial of one Judge of the said High Court, or of one Judge of any Divisional Court, pursuant to Section 13 of the said recited Act, and that an appeal shall also lie to the said High Court,' and so on.

4. The question which we have to consider is, whether the order passed by Mr. Justice Macpherson is a 'judgment' within the meaning of Clause 15 of the Letters Patent.

5. The question as to the true construction of this clause has frequently been both before this Court and the Judicial Committee of the Privy Council. In the case of the Justices of the Peace for Calcutta v. Oriental Gas Company 8 B.L.R. 433 (452) Sir Richard Couch, the then Chief Justice, sitting with Mr. Justice Markby expressed himself as follows: 'We think that 'judgment' in Clause 15 moans a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory; the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.'

6. Then in a subsequent case, Kalisunderi Debi v. Hurrish Chunder Chowdhry I.L.R. 6 Cal. 594 another Division Bench of this Court; in construing the same section with reference to an order made by Mr. Justice Pontifex refusing to transmit an order of the Privy Council to the lower Court for execution, because, in his opinion, the person applying for execution of the decree was not entitled to execute it, held that Mr. Justice Pontifex had exercised a judicial discretion, and had come to a decision that the applicant was not entitled to execute the decree, and that therefore the order passed by him was a 'judgment' within the meaning of Clause 15 of the Letters Patent.

7. The principle followed in this case was approved of by the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Debi I.L.R. 9 Cal. 482. Their Lordships observe as follows (p. 493): 'Those learned Judges,' namely, Mr. Justice White and Mr. Justice Mitter, 'held (and their Lordships think rightly) that, whether the transmission of an order under Section 610 would or would not be a merely ministerial proceeding, Mr. Justice Pontifex had infact exercised a judicial discretion, and had come to a decision of great importance, which, if it remained, would entirely conclude any rights of Kalisunderi to an execution in this suit.'

8. In the case of Manly v. Patterson I.L.R. 7 Cal. 339 it has been held (GARTH.C.J., and McDonell, J.) that no appeal lies to this Court under Clause 15 against an order of the Judge in the Privy Council Department, refusing an application for leave to appeal to the Privy Council.

9. And in the recent case of Lootf Ali Khan v. Asgur Reza I.L.R. 17 Cal. 455 where the question was whether an appeal lay against an order of a Judge granting a certificate to the effect that the case was a fit and proper one for appeal to the Privy Council, the learned Judges (WILSON and PIGOT, JJ.) before whom the appeal came on for hearing, held that there was no appeal under Section 15; and they observed, with reference to the case of Kalisunderi Debi v. Hurrish Chunder Chowdhry I.L.R. 6 Cal. 594; I.L.R. 9 Cal. 482 which was quoted before them, as follows (p. 458): 'That is a very different case from the present, where the order against which this appeal is brought is not one deciding finally or otherwise any question at issue in the case or the rights of any of the parties to the suit. It is merely a step taken to enable the parties to gobefore the Privy Council, and obtain from that tribunal a decision on the merits of the case.'

10. The principle that is to be gathered from the cases which I have referred to is this, that where an order decides finally any question at issue in the case, or the rights of any of the parties to the suit, it is appealable to this Court, otherwise not.

11. Now, the order complained of in the present instance is to this effect, that the applicant has failed to show sufficient cause for extending the time within which security is required to be furnished; and therefore the application for leave to appeal should be struck off the file. It should be borne in mind that at the time when this order was made the appeal had not been admitted, but only a certificate had been granted to the applicant, that the case was a fit one for appeal to Her Majesty in Council. The applicant was bound under Section 602 of the Code of Civil Procedure to furnish security within six, weeks from the date of such certificate. He failed to do so, and he failed to satisfy the Judge in the Privy Council Department that there was sufficient reason for extending the time in his favour. The learned Judge in this circumstance was not in a position to allow any further proceedings being taken in the matter. He was not in a position to declare under the provisions of Section 603 of the Code of Civil Procedure, that the appeal be admitted; and we think that, practically, he had no other alternative left to him than to direct that the application be removed from the file--for that is what the order really amounts to. It is an order which would follow as a matter of course upon the order he had made refusing to extend the time for furnishing security. We think that this order does not determine any question of right between the parties to the suit, and is not a 'judgment' within the meaning of Section 15 of the Letters Patent. It follows, therefore, that no appeal lies to this Court; and, accordingly, we reject this appeal with costs.


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