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Fuckhrunnissa Begum Vs. Ebrahim and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal531
AppellantFuckhrunnissa Begum
RespondentEbrahim and anr.
Excerpt:
appeal - decision on one of several issues--'judgment'--letters patent, 1865, clause 15. - .....to this court, and might be proceeding on appeal at the same time that the trial in the court below as to the rest of the case was going on.5. i purposely do not enter into the question as to how far such partial appeals would he admissible in the mofussil; but, undoubtedly, if they were so, they would be attended with much more mischief and inconvenience than they would be in the high court. i think that this appeal should be dismissed upon the ground that the judge's decision is not a judgment within the meaning of section 15 of the charter.markby, j.6. there is some difficulty in reconciling the decisions upon the letters patent, but i am inclined to think now that, whereas in this case the decision is of such a nature that it can clearly be questioned in appeal at some time or.....
Judgment:

Richard Garth, C.J.

1. I consider that in this case the appeal ought not to be heard. The decision of the learned Judge, which is appealed against, is not a judgment or decree which determines or affects the entire claim of the plaintiff. It is a decision which he arrived at on the settlement of issues, upon the validity of a hibbanama which was set up by the defendant as an answer to a portion of the plaintiff's claim.

2. As regards the rest of the claim, which is not affected by this hibbanama the Judge has framed certain issues, which will come on to be tried in due course; but the defendant has thought proper in the meantime to appeal from this partial decision. No authority has been adduced by the defendant's Counsel to justify an appeal under such circumstances; and I consider that, looking to the language of the Charter, as well as upon grounds of judicial convenience, the appeal ought not to be allowed.

3. The fifteenth clause of the Charter, upon which the appellant relies, says that an appeal shall lie from the judgment of any one Judge of the High Court. I think that word judgment means a judgment or decree which decides the case one way or the other in its entirety, and that it does not mean a decision or order of an interlocutory character, which merely decides some isolated point, not affecting the merits or result of the entire suit.

4. I entirely agree with the authorities, which have been cited to show that an appeal will lie from an order for the rejection of a plaint or the admission of a suit, because those are rulings which determine whether the plaintiff has or has not a right to sue at all in the particular case. But if the appellant is right, we might have three or four appeals, all pending in one cause at the same time, and all proceeding contemporaneously with the trial of the suit in the Court below. Thus, upon the settlement of issues, if the Judge were to refuse the plaintiff an issue upon the ground that a part of his claim was untenable, and he were also to refuse the defendant another issue, upon the ground that a deed, which the defendant wished to set up, was bad in law, and upon the trial of the cause the Judge were to decide one issue in favour of the plaintiff and then adjourn the trial to a future day; each of those decisions, if the appellant is right, might be made separate subjects of appeal to this Court, and might be proceeding on appeal at the same time that the trial in the Court below as to the rest of the case was going on.

5. I purposely do not enter into the question as to how far such partial appeals would he admissible in the mofussil; but, undoubtedly, if they were so, they would be attended with much more mischief and inconvenience than they would be in the High Court. I think that this appeal should be dismissed upon the ground that the Judge's decision is not a judgment within the meaning of Section 15 of the Charter.

Markby, J.

6. There is some difficulty in reconciling the decisions upon the Letters Patent, but I am inclined to think now that, whereas in this case the decision is of such a nature that it can clearly be questioned in appeal at some time or other, the matter is more one of convenience and procedure than of strict law. I should have been inclined to think that in this particular case the appeal might be conveniently heard now, but as the Chief Justice thinks that it cannot be heard until the other issues are decided in the Court below, I shall not differ.


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