1. This is an appeal by one Gour Mohun Mullick, one of the defendants in the suit, from the judgment of my learned brother Mr. Justice Rankin whereby he dismissed an application which had been made by the appellant. It arises in connection with litigation in respect of Gopal Lall Seal's estate, which, it is said, has occupied much time of this Court; and it is only necessary for me to mention that there was a settlement in this Court arrived at on the 4th of April 1919 and a consent-decree passed in a Suit No. 1223 of 1917 in which Gour Mohan Mullick and others were plaintiffs and Srimati Noyan Manjuri Dassi and others were defendants. The present suit is a suit by Srimati Noyan Manjuri Dassi--a person of unsonnd mind--by her grandmother, Srimati Brindarani Dassi, against Kanto Mohun Mullick, Gour Mohun Mullick (who is the appellant in this appeal) and others; and the object of the suit is to obtain a declaration that the consent-decree to which I have referred, is not binding upon the plaintiff, and that her interest is not affected in any way by the same, and that, if necessary, the said decree may be set aside and that Suit No. 1223 of 1917 as well as the different appeals arising therefrom may be heard on the merits. There are other incidental reliefs asked for in the suit.
2. The appellant, Goar Mohun Mullick, who if, as 1 have said, one of the defendants in the suit, made an application on the 10th April 1920 to the learned Judge on the Original Side that the plaint in the suit brought by Srimati Noyan Manjuri Dassi might he taken off the file, or for an enquiry whether the suit was properly instituted and whether it was fit and proper and for the benefit of the plaintiff, that the suit should be further prosecuted and that all further proceedings should be stayed in the meantime and that Srimati Brindarani should be directed to furnish security for costs and that all proceedings should be stayed until such security was given. On the hearing of that application, the learned Judge delivered a judgment and directed that the plaintiff should give particulars of certain allegations which were contained in the plaint and, on a subsequent occasion after these particulars had been given, he delivered a second judgment; and I propose to read three passages from that judgment to show what was the conclusion at which he arrived. After stating what was the rule with regard to an application such as this, taking a passage from Daniel's Chancery Practice as his guide, he proceeded as follows: 'i propose, therefore, to consider, first, whether this in a plain and strong case, as appearing upon such evidence as can be given and considered upon a mere interlocutory application, first, for saying that there is no substance or possibility of benefit to the lunatic in the action, and, secondly, whether the present nest friend has been shown to be unfit to be allowed to continue in that capacity.' Dealing with the first point, which is the material point in the consideration of this appeal, the learned Judge said after discussing the evidence: 'On these lines and broadly speaking, I am of opinion that it would be wrong to hold within the meaning of the passage which I have just sited that this is a suit which can be seen to have no basis in the benefit of the lunatics and to deserve to be terminated.' And, in order to make the position which the learned Judge was taking up clear, towards the end of the judgment he said: 'It remains for me to add one matter by way of explanation. I have hell that I am not prepared upon this proceeding to say that the suit is either mala fide or entirely unsubstantial be that there would be an abase of the process of the Court in allowing it to go on, But I want it to be distinctly understood that this judgment is not to be taken as the approval of a Court administering a lunatic's estate to the institution of this suit. That is an entirely different matter.'
3. Upon the hearing of this appeal the learned Counsel for the plaintiff-respondent look the point that there was no right of appeal from the learned Judge's judgment, in as much as it was not a 'judgment' within the meaning of Clause 15 of the Letters Patent of thin Court. The well-known passage in the case of Justices of the Peace for Calcutta v. Oriental Oat Co. 8 B.L.R. 433 at p. 432 : 17 W.R. 364 (the passages appearing at page 452) was relied upon by the learned Counsel for the plaintiff respondent. That pass-age which is families to us all is as follows: 'We, think that 'judgement' in Clause 15 means 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 a being that a final judgment determine the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it leaving other matter to be determined.' It has been held several times in thin Court that that definition is not an exhaustive definition and that whenever a point similar to the one, which I am now discussing, is taken, the Court has to decide whether the particular order in question is a 'judgment' within the meaning of Clause 15, having regard to the nature of the order. In this case, the learned Counsel for the appellant, Gour Mohun Mullick, urged that the defendant-appellant has a right to have the suit stopped on the ground that it had been shown that the unit was an abuse of the process of the Court, in that it had not been brought for the benefit of the lunatic but far some ulterior and improper motive, and, he further urged, that that right had been finally determined by the learned Judge and that, consequently, this appeal would lie, In my judgment, the alleged right,' if that word can be properly applied in this connection, is not such a right as is contemplated by the definition of the learned Chief Justice which appears in Justices of the Peace for Calcutta v. Oriental Gas Co. 8 B.L.R. 433 at p. 432 : 17 W.R. 364, It is true that the defendant had a right to apply to the Court to have the plaint taken off the file on the ground that the suit had not been brought for the benefit of the lunatic plaintiff, but it was in the discretion of the learned Judge to decide upon the materials which were then before him, whether he would make that order or whether he would allow the suit to proceed to trial. The learned Judge has decided, in effect, that upon the materials then before him and upon the application which was made to him by the defendant appellant he could not see his way at that stage to stay the suit The learned Judge has not decided finally the question whether the suit has been brought for the benefit of the lunatic or whether it is brought mala fide or whether it is an abuse of the process of the Court, In view of the passage in the learned Judge's judgment which I have read, it is clear that the issue as to whether the suit is for the benefit of the lunatic or is brought mala fide or is an abuse of the process of the Court is still open and can be raised at the trial. In fact, the decision of the learned Judge really amounts to no more than a decision as to the procedure which is to be followed, the result being that in his judgment the suit should proceed to trial. In my opinion, the learned Judge's judgment does not amount to a decision which affects the merits of the question between the parties by determining some right or liability. It is not, therefore, a 'judgment' within the meaning of Clause 15 of the Letters Patent and consequently there is no right of appeal. In my judgment, the appeal, therefore, must be dismissed.
4. As regards the costs of this appeal, the appellant must pay the costs of the plaintiff-respondent. As regards the other respondents, they must pay their own costs With the exception of Panna Lal Seal. The other respondents, with the exception of Panna Lal Seal, are all in the same interest as the appellant, and it seems to me that there was no necessity for them to appear in this appeal. That consideration does not apply to Panna Lal Seal, because we find that there is an allegation in the plaint that this suit was instituted ' for personal gains and benefit of Srimati Brindarani Dassi, Kuchil Lal Sen, Panna Lal Seal and their associates who had been instruments in putting the estate to a very heavy loss hitherto.' In view of that allegation against Panna Lal Seal it appears to us that Panna Lal Seal was entitled to appear on this appeal, and, inasmuch as we decided that the defendant-appellant has no right of appeal, the usual result must follow and the appellant must pay the costs of Panna Lal deal of this appeal.
5. I agree and only add a few observations in deference to the argument of Mr. Langford James.
6. It is difficult, perhaps, to reconcile all the numerous decisions as to the meaning of the term ' judgment' in Clause 15 of the Letters Patent. The infallible test for distinguishing between an appealable judgment and one which is not appealable has still to be discovered, There is, however, a consensus of opinion that some limitation must be put upon the term and the gloss of Sir Richard Couch, C.J., in Justices of the Peace for Calcutta v. Oriental Gas Co. 8 B.L.R. 433 at p. 432 : 17 W.R. 364 has generally bean adopted as a starting point. The term means, according to Couch, C.J., 'a decision which affects the merits of the question between the parties by determining some right or liability,' and the decision ' may be either final, preliminary or interlocutory.' A difficulty often arises in the application of this definition to decisions of the class known as the interlocutory. It is not conclusive that the question decided is a question depending upon the judicial discretion of the Court of first, instance nor is it conclusive that the decision would not amount to a decree or an appealable order under the Civil Procedure Code: nor, again, would it be correct to say that no interlocutory decision on a question of procedure is appealable: for instance, there are the cases where a judgment on a question of venue has been held appealable. Of. Joy & Co. v. Gopiram Bhotica 58 Ind. Cas. 755 : 47 C. 611 : 24 C.W.N. 612. But the considerations to which I have adverted may in particular instances afford some assistance to the Court.
7. As to the case of Koramall Rambullobh v. Mungilal Dalim Chand 54 Ind. Cas. 836 : 23 C.W.N. 1017, upon which reliance was placed for the appellant, that seems to me distinguishable because there a right in praesenti was asserted to a sum of money. Possibly, that case goes to the furthest limit compatible with general adherence to Sir Richard Couch's definition.
8. In the present case Mr. Langford James argued that his client had a right to have the plaint rejected or the suit stayed on the ground that the suit was not for the benefit of the lunatic for whose benefit it was nominally instituted, or, in other words, that the suit was an abuse of the process of the Court, Granted, that the appellant, who was a defendant in the suit, was at liberty to apply to the learned Judge to stay the suit on such a ground, the learned Judge has not committed himself to any thing further than this, that at this stage on the materials now available, the plaint and the appellant's application and be forth he is not prepared as a matter of discretion to accede to the application or to say that the suit has not been brought bona fide for the protection of the interest of the lunatic. In my opinion that is not within Sir Richard Couch's definition ' a determination of a right or liability affecting the merits of the controversy between the parties.' The only right of the appellant; we are now concerned with is his right to apply and to have the question decided sometime, now or later. It is conceded that it lay in the discretion of the learned Judge to say whether the question should be decided now or later. The learned Judge has not denied expressly or by implication |that the appellant was at liberty to make this application. On the contrary, he has dealt with the matter on the footing that the appellant was entitled to apply and he has dealt with ill most carefully and attentively. It is conceded again that the learned Judge's order would not be appealable under the Civil Procedure Code.
9. It would further appear that the decision, to the extent to which it goes, relates only to procedure.
10. If merely postpones a determination on the merits of the question until a later stage of the suit. Not only, as I understand, will the appellant be at liberty to raise the question again at a later stage on further materials, but it will in any case be the duty of the Trial Judge to determine whether or not the suit is for the lunatic's benefit., whether or not it is for his benefit that the settlement arrived at in the course of the previous litigation should be set aside Of. Potter v. Porter (1888) 37 Ch. D. 420 at pp. 430, 431 : 68 L.T. 688 : 36 W.R. 580, per Bowen, L. J.
11. The authorities seem So show that in order to make a decision appealable there must be in it some element of finality, and I am unable to find that element in the present case.
12. I may add that the application to stay this suit having been made on behalf of a defendant the question arises inter partes: and is, as I have said, open on the merits to further consideration. It may be that where such an application is made by a third party, not a patty to the suit, assuming that it is open to a third party to apply, different considerations would arise.
13. In the result, I agree with my Lord that the appeal fails on the ground that it is incompetent and I concur in the order which he has proposed.