Skip to content


Brojo Gopal Roy Burman Vs. Amar Chandra Bhattacharya and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1929Cal214,114Ind.Cas.88
AppellantBrojo Gopal Roy Burman
RespondentAmar Chandra Bhattacharya and ors.
Cases ReferredMaharaj Kishore Kahnna v. Kiren Shashi Dasi A.I.R.
Excerpt:
- .....the time for presenting, an appeal under section 5, limitation act, and it was held upon letters patent appeal that no appeal lay from this refusal. the reasoning was:it may no doubt be said that an order which terminates a proceeding is a judgment within the meaning of clause 15, but it must be a proceeding, as we understand it, in the course of a suit or in relation thereto and in which some question or other as to the right or liability of any party is raised, and not a proceeding in respect of a matter which has already come to a termination by the operation of law or otherwise.this view was objected to by mookerjee, j., in mathura sundari dasi v. haran chandra saha [1915] 43 cal. 857, as going beyond the definition of the term 'judgment' given by couch, c.j., in nagindas motilal.....
Judgment:

Rankin, C.J.

1. In this case a second appeal was presented out of time and the appellants (respondents before us) obtained a rule calling upon their opponents to show cause why the appeal should not be registered though filed out of time. The case made was that there had been a miscalculation of the time by the vakil acting in the matter of the presentation of the second appeal and that, in the circumstances, this amounted to a sufficient cause within the meaning of Section 5, Limitation Act. The rule came on for hearing before C.C. Ghose, J., and Buckland, J., who differed in opinion. Buckland, J., would have discharged the rule but C.C. Ghose, J., being the senior Judge, made the rule absolute and permitted the appeal to be filed and registered. From this order an appeal has been taken under Clause 15, Letters Patent, and at the hearing before us the competence of this appeal has been objected to on the ground that the decision of C.C. Ghose, J., was not a judgment within the meaning of that clause.

2. An opinion has been judicially expressed to the effect that the term ' judgment ' includes any decision or determination affecting the rights or interests of any suitor or applicant and that it is impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from: per Bittleston, J., in De Souza v. Coles [1868] 3 M.H.C. 384. In this Court, however, the contrary view has been well-settled. The well known definition of Couch, C.J., defines judgment as a decision which affects the merits of the question between the parties by determining some right or liability: The Justices of the Peace for Calcutta v Oriental Gas Co. [1872] 8 B.L.R. 433 ; but in more than one recent case it has been stated that this definition is not exhaustive.

3. The correct technical use of the word 'judgment' as distinct from 'order' was considered in England in the case of Ex parte Chinery [1884] 12 Q.B.D. 342, and Onslow v. Commissioners of Inland Revenue [1890] 25 Q.B.D. 465. According to these decisions a judgment is a decision obtained in an action and every other decision is an order. These cases were referred to with approval by the Judicial Committee and applied to the construction of the Letters Patent of the Bombay High Court in Tata Iron and Steel Co. v. Chief Revenue Authority A.I.R. 1923 P.C. 148. In view of the use of the word 'order' in Clause 15, of our Letters Patent as they now stand, it may be doubted whether for the present purpose the correct technical use of the word 'judgment' in England is a safe guide to the meaning of the clause. It was apparently upon some such principle, however, that the case of Gobinda Lal Das v. Shiba Das Chatterjee [1906] 33 Cal. 1323, was decided. In that case the senior Judge of a Division Bench had refused to extend the time for presenting, an appeal under Section 5, Limitation Act, and it was held upon Letters Patent Appeal that no appeal lay from this refusal. The reasoning was:

It may no doubt be said that an order which terminates a proceeding is a judgment within the meaning of Clause 15, but it must be a proceeding, as we understand it, in the course of a suit or in relation thereto and in which some question or other as to the right or liability of any party is raised, and not a proceeding in respect of a matter which has already come to a termination by the operation of law or otherwise.

This view was objected to by Mookerjee, J., in Mathura Sundari Dasi v. Haran Chandra Saha [1915] 43 Cal. 857, as going beyond the definition of the term 'judgment' given by Couch, C.J., in Nagindas Motilal v. Nilaji Moroba Naik A.I.R. 1924 Bom. 399, the High Court of Bombay dissented from the reasoning in Gobinda's case, holding that an appeal lay under the Letters Patent from a refusal to extend time under Clause 5, Limitation Act. There is much force in the objections which have been taken to the decision in Gobinda's case and were the order appealed against before us an order refusing to extend time, and thereby putting an end to the litigation between these parties, we might well have thought it necessary to refer the question of the correctness of that decision to a Full Bench.

4. The cases which bear upon the competence of an appeal under Clause 15, Letters Patent, from a decision under Section 5, Limitation Act, admitting an appeal after the period of limitation prescribed require, in my opinion, to be separated from cases which proceed upon the footing that the decision appealed from has put an end to the litigation. Even within this limited range, however, it cannot be said with confidence that the decided cases are uniform or consistent. While it has been held in Mathura Sundari Dasi v. Haran Chandra Saha [1915] 43 Cal. 857, that an order made under Order. 9, Rule 9, Civil P.C. refusing to restore a suit after it had been dismissed for default under Rule 8 of the same order is a judgment within the meaning of Clause 15, Letters Patent, it has also been held in Maharaj Kishore Khanna v. Kiran Shashi Dasi A.I.R. 1922 Cal. 407 that no appeal lies from an order made under Rule 9 setting aside a dismissal and restoring a suit. Again, while under Order 43, Rule 1(k), Civil P.C. an appeal is expressly given from an order under Rule 9, Order 22 refusing to set aside the abatement of a suit, it has been held (Sarat Chandra Sarkar v. Maihar Stone and Lime Co., Ltd.) A.I.R. 1922 Cal. 335, that an order setting aside the abatement of a suit is a. judgment under Clause 15, Letters Patent. This decision followed an unreported case Padmabati v. Tulsi Appeal No. 16 of 1918, decided on 18th June 1918, where Woodroffe, J., laid stress upon the circumstance that under Rule 9 of Order 22,

where a suit abates... no fresh suit shall be brought on the same cause of action ' and said

the appellant has acquired thereby a right which the order made by Ohaudhury, J., has interfered with. There is therefore in my opinion an appeal.

5. Of cases decided by the Judicial Committee there appear to be two. The first is Hurrish Chunder Choudhry v. Kali Sundari Debi [1882] 9 Cal. 482. Pontifex, J., had refused to transmit a certain order in Council to the appropriate Court for execution, holding that the applicants must be left to a regular suit to enforce their claim thereunder. Their Lordships agreed that the learned Judge had in fact exercised a judicial discretion and had come to a decision of great importance which, if it remained, would entirely conclude any rights of Kali Sunderi to an execution in the suit. They held therefore that it was a judgment within the meaning of Clause 15. In Krishnasami Panikondar v. Ramasami Chettiar A.I.R. 1917 P.C. 179, an appeal had been admitted out of time by the ex-parte order of a single Judge. When the appeal came on for hearing before a Division Bench in the presence of the respondent it was held that the delay should not have been excused and the appeal was dismissed upon that ground. On appeal to the Privy Council it was contended that the Division Bench had no jurisdiction to override the order made extending the time under Section 5, Limitation Act. Sir Lawrence Jenkins delivering the judgment of the Board said in Krishnasami Panikondar v. Ramasami Chettiar A.I.R. 1917 P.C. 179 at p. 416 [of 41 Mad.]:

But this order of admission was made not only in the absence of Ramasami Chettiar, the contending respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril this finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected.

6. It will be seen therefore that of the cases before the Privy Council one was a case in which execution had been entirely refused. In the other the observations made were directed to the question whether the order was of a kind which should finally be pronounced ex parte. In both, however, the importance of the decision to the party complaining thereof was referred to.

7. An examination of the language of Sections 3 and 5, Limitation Act of 1908, leads me to think that for the present purpose there is a certain fallacy in the language commonly employed to the effect that an order admitting an appeal under Section 5 deprives the respondent of a vested right granted to him by Section 3. The opening words of Section 3 are ' subject to the provisions contained in Sections 4 to 25 inclusive.' Section 5 applies broadly speaking, to cases in which the limitation period is short. It does not apply so as to give a power of extending the period of limitation prescribed for suits. It appears to me to be the intention of the Limitation Act that where an appellant has proceeded with due diligence, no right shall accrue to the respondent by reason merely of the lapse of the statutory period. 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 9, 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. For the purpose of the present objection to the competence of this Letters Patent Appeal it is a stronger case in favour of the present respondent than the case of Maharaj Kishore Kahnna v. Kiren Shashi Dasi A.I.R. 1922 Cal. 407.

8. In my judgment we should uphold the preliminary objection and dismiss this Letters Patent Appeal with costs 4 gold mohurs.

Suhrawardy, J.

9. I agree.

Graham, J.

10. I also agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //