Civil Appeal No 662 of 1981 Appeal by special leave from the judgment and order dated the 15th January 1981 of the Bombay High Court in Letters Patent Appeal No 611 of 1980
Soli J Sorabji GL Sanghi PH Parekh PK Shroff and Gautam Philips for the Appellant
RP Khambata BR Agarwala KP Khambata Ashok C Mehta and Miss Halida Khatun for Respondent No 1
KK Venugopal R Vaidya MB Rele Rajiv K Garg and ND Garg for Respondent No 2
The following judgments were delivered FAZAL ALI J
This appeal by special leave is directed against an Order dated January 15 1981 of the Division Bench of the Bombay High Court by which the appeal filed by the appellant against the Order of the Trial Judge was dismissed on the ground that the appeal was not maintainable as the Order impugned was 197 not a judgment within the meaning of clause 15 of the Letters Patent of the High Court
After hearing counsel for the parties at great length we passed the following Order on April 22 1981 We have heard counsel for the parties at great length
In our opinion the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits
We therefore allow this appeal set aside the judgment dated January 15 1981 of the Division Bench of the Bombay High Court and remand the case to the same and decide it on merits
The High Court will dispose of the appeal as quickly as possible
The interim order passed by this Court on February 16 1981 will continue until the High Court disposes of the appeal
Liberty to parties to approach the High Court for fixing an early date of hearing
In the circumstances there will be no order as to costs
Reasoned judgment will follow
 We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date
As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment
Suffice it to say that the plaintiff appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit
The single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction
Thereafter the plaintiff appellant filed an appeal before the Bombay High Court which dismissed the appeal as being non maintainable on the ground that the Order impugned order of the Single Judge was not a judgment as contemplated by clause 15 of the letters patent of the High Court
Hence this appeal by special leave
The substantial questions of law raised in this appeal by the Counsel for the parties are as to the scope ambit and meaning of 198 the word judgment  appearing in clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters Patent of other High Courts
We might mention here that the significance of the word judgment  assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action
These High Courts are Calcutta Bombay Madras as also Delhi and Jammu  Kashmir
The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration admiralty and cases under 
It seems to us that the interpretation of the word judgment  appearing in the Letters Patent of the High Court has been the subject matter of judicial interpretation by decisions rendered by various High Courts in India
Unfortunately however the decisions are by no means consistent or unanimous
On the other hand there appears to be a serious divergence of judicial opinions and a constant conflict between the High Courts regarding the true scope ambit and meaning of the word judgment  appearing in the Letters Patent so much so that a colossal controversy has been raging in this country for more than a century
Several tests have been laid down by leading judgments of the Calcutta Madras and Rangoon High Courts
Other High Courts have either followed one or the other of the leading judgments regarding the validity of the tests laid down by the three High Courts
The Calcutta High Court appears to have followed the leading case of its court in The Justices of the Peace for Calcutta vs The Oriental Gas Company where Sir Richard Couch CJ had laid down a particular test on a rather strict and literal interpretation of the Letters Patent
Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch CJ with some modifications and clarifications
The Madras High Court has taken a very liberal view in its decision in TV Tuljaram Row vs MKRV Alagappa Chettiar
The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction hereinafter referred to as Trial Judge  to a larger Bench
The Rangoon High Court speaking through Sir Page CJ in In Re Dayabhai Jiwandas  Ors vs AMM Murugappa Chettiur has placed a very narrow interpretation on 199 the term judgment  and has almost equated it with a decree passed by a civil court
This Court also has incidentally gone into the interpretation of the word judgment  and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts
This Court however has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other
In this connection in Asrumati Debi vs Kumar Rupendra Deb Raikot  Ors
this Court observed as follows In view of this wide divergence of judicial opinion it may be necessary for this Court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word judgment  as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts
We are however relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us be regarded as a judgment  within the meaning of clause 15 of the Letters Patent
Emphasis supplied Similarly in the case of State of Uttar Pradesh vs Dr Vijay Anand Maharaj this Court noticed the divergence of judicial opinions on the subject and observed as follows  The scope of the expression judgment came under the judicial scrutiny of the various High Courts there is a cleavage of opinion on that question   200 The foregoing brief analysis of judgment shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts
It is not necessary in this case to attempt to reconcile the said decision or to give a definition of our own for on the facts of the present case the order of Mehrotra J would be a judgment within the meaning of the narrower definition of that expression
After however analysing the various judgments this Court did not think it necessary to give any definition of its own and refrained from giving a final decision on the question as to the scope and meaning of the word judgment  appearing in the Letters Patent
Mudholkar J in his concurring judgment expressly refrained from expressing any opinion on the subject
Again in a later decision in Shankarlal Aggarwal  Ors
vs Shankarlal Poddar  Ors
the conflict in the various decisions of various High Courts was again noticed and this Court observed as follows There has been very wide divergence of opinion between the several High Court in India as to the content of the expression judgment  occurring in Cl
15 of the Letters Patent  
We consider that occasion has not arisen before us either since in view of the construction which we have adopted of section 202 of the Indian the scope of the expression judgment  in the Letters Patent does not call for examination or final decision
Emphasis ours There are other decisions of this Court also which have touched the fringes of the question but did not choose to give a final verdict on the vexed question and preferred to decide the cases on their own facts
We shall briefly refer to these decisions at a later stage of this judgment
With due deference to the desire of this Court to settle the controversy in question once for all the very able detailed and lengthy arguments advanced by counsel for the parties on various shades features and aspects of the interpretation of the word judg 201 ment  appearing in the Letters Patent the serious legal controversy raging in this country for over a century between the various High Courts resulting in an irreconciliable element of judicial uncertainty in the interpretation of the law and further having regard to the huge backlog and accumulation of arrears in the High Courts we are clearly of the opinion that the time has now come when the entire controversy on the subject should be set at rest and an authoritative pronouncement on the matter may be given by us so as to maintain complete consistency in deciding the matter by the High Courts whenever it arises
Mr Sorabjee learned counsel for the appellants has submitted four important points of law dwelling on the various facts of the question at issue 1 It was contended that the provisions of section 104 read with order 43 Rule 1 of the Code of Civil Procedure 1908 hereinafter referred to as Code of 1908  does not impose any bar on the trial held by the Trial Judge and thus by virtue of these provisions the order impugned the order of the trial court refusing to appoint Receiver and to grant injunction falls squarely under clauses r and s of order 43 Rule 1 of the Code of 1908 and is therefore appealable to a larger Bench
In amplification of this contention it was submitted that the Trial Judge is governed by the procedure prescribed by the Code of 1908 in all matters and hence there is no reason why order 43 Rule 1 should not apply to any order passed by the Trial Judge under any of the clauses of order 43 Rule 1 read with section 104
2 Even if we assume that the Letters Patent was a special law which overrides the provisions of the Code of Civil Procedure the power under section 104 read with order 43 Rule 1 is in no way inconsistent with cl 15 of the Letters Patent
Section 104 merely provides an additional remedy and confers a new jurisdiction on the High Court without at all interfering with or overriding the existing provisions of the Letters Patent
202 3 Even if order 43 Rule 1 did not apply in terms the orders which have been mentioned as being appealable to a larger Bench could form valuable guidelines for the Court in arriving at the conclusion that such orders amount to judgments of the Single Judge as contemplated by the Letters Patent
4 Even if section 104 read with order 43 Rule 1 does not apply an order refusing to appoint a receiver or to grant injunction has the trappings and attributes of finality as it affects valuable rights of the plaintiff in an ancillary proceeding though the suit is kept alive and would therefore amount to a judgment within the meaning of the Letters Patent
The learned counsel for the respondents while countering the arguments of Mr Sorabjee submitted the following propositions 1 section 104 read with order 43 Rule 1 could not apply to the original trial by the Trial Judge which is governed by the Letters Patent alone
2 It was further argued that the forum for an appeal contemplated by section 104 is the same as that for appeals under sections 96 to 100 of the Code of 1908 that is to say appeals from the courts in the mofussil district courts to the High Court and it has no application to internal appeals within the High Court
In other words the forum under which an appeal lies from one Judge of the High Court to a larger Bench is not a forum contemplated by section 104 at all but is created by the Letters Patent
3 If section 104 of the Code of 1908 is held to be applicable to proceedings before the Trial Judge of the High Court certain strange anomalies will arise viz where an appeal lies from a district court under order 43 Rule 1 before a Single Judge a further appeal will have to lie before a larger Bench against the order of the Trial Judge although section 104 prevents a second appeal against miscellaneous orders under order 43 Rule 1 and permits only one appeal
This will therefore lead to an inconsistent and anomalous position
203 4 The word judgment  should be strictly construed as was done by Sir Richard Couch CJ in Oriental Gas Company s case supra so as to include only those orders of the Trial Judge which are of a final nature and effectively decide the controversy of the issues in dispute
We would first deal with the point relating to the applicability of section 104 read with order 43 Rule 1 of the Code of 1908 because it seems to us that the arguments of Mr Sorabjee on this score are well founded and must prevail
Moreover some of the decisions of this Court those of the Privy Council and other High Courts support the propositions adumbrated by Mr Sorabjee
In order however to appreciate the applicability of section 104 read with Order 43 Rule 1 it may be necessary to examine some important provisions of the Code of Civil Procedure as also the previous history which led to the enactment of section 104 by the Code of 1908
It appears that prior to the Code of 1908 in the earlier Code of Civil Procedure there were two kinds of appeals to the High Court 1 appeals against judgments and decrees of the Trial Judge and 2 appeals against orders either interlocutory or quasi final passed by the court during the pendency of the suit or proceedings
In the Civil Procedure Code of 1877 the section corresponding to order 43 Rule 1 of the Code of 1908 was section 588 which provided for appealable orders under clauses a to t
Section 588 of the Code of 1877 provided that an appeal from any order specified in section 588 shall lie to the High Court or when an appeal from any other order is allowed by the Chapter it would lie to the Court to which an appeal would lie from the decree in the suit in respect of which such order was made or when such order is passed by a court other than the High Court then to the High Court
A perusal of sections 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Courts from the district courts in the mofussils or internal appeals to the High Courts under the Letters Patent
Section 591 clearly provided that except the orders mentioned in section 588 no further appeal could lie from any order passed by any court in exercise of its original or appellate jurisdiction
Section 591 may be extracted thus 591
No other appeal from orders but error therein may be set forth in memorandum of appeal against decree
204 Except as provided in this chapter no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction but if any decree be appealed against any error defect or irregularity in any such order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal
In other words the position was that while the statute provided only for appeals against orders all other appeals could only be against a decree passed by the court concerned
The statute there fore did not contemplate any other appeal except those mentioned in sections 588 and 591
The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same
In view of the rather vague and uncertain nature of the provisions of sections 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of section 588
The Bombay and Madras High Courts held that under cl 15 of the Letters Patent of the said High Courts an appeal could lie only from orders passed under section 588 and not even under the Letters Patent
In Sonba i vs Ahmedbha i Habibha i a Full Bench of the Bombay High Court held that under cl 15 of the Letters Patent an appeal to the High Court from an interlocutory order made by one of the Judges lies only in those cases in which an appeal was allowed under the Code of Civil Procedure that is to say under sections 588 and 591 of the Code of 1877
The Madras High Court in Rajgopal  Ors in Re LPA No 8 of 1886 took the same view
Then came the decision of the Privy Council in the case of Hurrish Chunder Chowdry vs Kali Sundari Debia which while considering section 588 made the following observations It only remains to observe that their Lordships do not think that section 588 of Act X of 1877 which has the effect of restricting certain appeals is from one of the Judges of the Court to the full Court Emphasis ours 205 This judgment gave rise to a serious conflict of opinions in the High A Courts in India
The High Courts of Calcutta Bombay and Madras held that in view of the decision of the Privy Council in the aforesaid case even though an order may not have been appealable under section 588 it could be appealable provided it was a judgment within the meaning of cl 15 of the Letters Patent of the respective High Courts
Toolsee Money Dassee vs Sudevi Dassee Secretary of State vs Jehangir Chappan vs Modin Kutti However the Allahabad High Court in Banno Bibi vs Mehdi Husain held that if an order was not appealable under sections 588 and 591 of the Code of 1877 it could not be appealed against even under the Letters Patent of the High Court
This view was affirmed by a later decision of the same High Court in Muhammad Naim ul Lah Khan vs Ihsan ul Lah Khan
With due respect we would like to point out that the pointed and terse observations of the Privy Council did not leave any room for any doubt or speculation in the matter
While construing section 588 the Judicial Committee in Hurrish Chunder Chowdry s case supra had made it clear that appeals would lie under section 588 to the High Court and the section did not contain any restriction to the effect that appeal against the orders of the Trial Judge mentioned in section 588 would not lie to a larger Bench of the High Court
In other words the Privy Council intended to lay down clearly that section 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond section 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of cl 15 of the Letters Patent
Therefore the views taken by the Calcutta Bombay and Madras High Courts referred to above were undoubtedly correct
At any rate since a fresh controversy had arisen the legislature stepped in to settle the controversy by enacting the new section 104 in the Code of 1908
Section 104 made it clear that appeals against orders mentioned in order 43 Rule 1 were not in any way inconsistent with the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous Orders passed by the Trial Judge to a larger Bench
In other words the legislature gave full statutory effect to the views of the Calcutta 206 Bombay and Madras High Courts
Even after the introduction of section 104 the conflict between the various High Courts still continued as to whether or not section 104 would apply to internal appeals in the High Court
That is the question which we shall now discuss
To begin with it is not disputed that a Trial Judge has to follow the entire procedure laid down by the Code of 1908 starting from the presentation of the plaint right up to the delivery of the judgment
The only difference in the assumption of jurisdiction by the High Court is that a suit of a particular valuation has to be instituted in the High Court rather than in the District court
Secondly it is indisputable that any final judgment that the Trial Judge passes deciding the suit one way or the other amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger Bench which normally is a Division Bench as provided for under the Rules made by various High Courts
Thirdly the Letters Patent itself does not define the term judgment  and has advisedly not used the word decree  in respect of any judgment that may be given by the Trial Judge
Section 5 of the Code of 1908 may be extracted thus 5
Application of the Code to Revenue Courts 1 Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent the State Government may by notification in the Official Gazette declare that any portions of those pro visions which are not expressly made applicable by this Code shall not apply to those Courts or shall only apply to them with such modifications as the State Government may prescribe
2 Revenue Court in Sub section 1 means a court having jurisdiction under any local law to entertain suits of other proceedings relating to the rent revenue or profits of land used for agricultural purposes but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature  The importance of this section is that wherever the provisions of the Code of Civil Procedure are sought to be excluded by any special enactment which may be silent on the point the State 207 Government can by notification apply the provisions of the Code to Revenue courts
A bare perusal of this section would clearly reveal that excepting Revenue courts all other Civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of procedure
Section 41 of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law
Thus the test contained in section 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by section 4 the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent
This now takes us to section 104 of the Code of 1908 the relevant portion of which may be extracted thus 1041 An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders a to f annulled ff an order under section 35 A g an order under section 95 h an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree 1 any order made under rules from which an appeal is expressly allowed by rules 2 No appeal shall lie from any order passed in appeal under this section
 Thus by the force of section 104 all appeals as indicated in the various clauses of order 43 Rule 1 viz a to w would lie to the appellate court
Section 105 clearly provides that no appeal shall lie from any order of a Court made in the exercise of its original or appellate 208 jurisdiction except according to the procedure laid down by the Code
The relevant part of section 105 1 may be extracted thus 105
1 Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from any error defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal
 Finally order 49 Rule 3 expressly exempts matters contained in clauses 1 to 6 of Rule 3 from the operation of the extraordinary original civil jurisdiction of the chartered High Courts that is to say the jurisdiction conferred on the High Court by the Letters Patent
The relevant portion of this provision may be extracted thus O 49
3 The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction namely 1 rule 10 and rule 11 clauses b  c of order VII 2 rule 3 of order X 3 rule 2 of order XVI 4 rules 5 6 8 9 10 11 13 14 15 and 16 so far as relates to the manner of taking evidence of Order XVIII 5 rules 1 to 8 of order XX and 6 rule 7 of order XXXIII so far as relates to the making of a memorandum and rule 35 of order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction It may be pertinent to note that although a number of rules have been exempted from the operation of the Code order 43 Rule 209 1 and the clauses thereunder have not been mentioned in any of these clauses
Thus a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that section 104 read with order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court
Unfortunately this fact does not appear to have been noticed by any of the decisions rendered by various High Courts
We might further point out that section 117 of the Code of 1908 expressly applies the provisions of the Code to High Courts also
Section 117 may be extracted thus 117
Save as provided in this Part or in Part X or in rules the provisions of this Code shall apply to such High Courts
We find ourselves in complete agreement with the arguments of Mr Sorabjee that in the instant case section 104 read with Order 43 Rule 1 does not in any way abridge interfere with or curb the powers conferred on the Trial Judge by cl 15 of the Letters Patent
What section 104 read with order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench
Indeed if this is the position then the contention of the respondent that section 104 will not apply to internal appeals in the High Courts cannot be countenanced
In fact the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a Trial Judge would lie
It is obvious that when the Code contemplates appeals against orders passed under various clauses of order 43 Rule 1 by a Trial Judge such an appeal can lie to a larger Bench of the High Court and not to any court subordinate to the High Court
Hence the argument that order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts
We might also reiterate that prior to the Code of 1908 in the Code of 1877 an identical provision like order 43 Rule 1 also existed in the shape of section 588 which was absolutely in the same terms 210 as order 43 Rule 1 and its various clauses
Of course section 104 was conspicuously absent from the Codes of 1877 or 1882
As indicated earlier the question of the application of section 588 now Order 43 Rule 1 was considered as early as 1882 in Hurrish Chunder Chowdary s case supra where the Privy Council in very categorical terms observed thus It only remains to observe that their Lordships do not think that section 588 of Act X of 1877 which has the effect of restricting certain appeals applies to such a case as this where the appeal is from one of the Judges of the Court to the full Court
 We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that section 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court which really now means the Division Bench constituted under the Rules
In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that s588 does not apply to High Courts
We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council
So far as the applicability of section 588 to proceedings in the High Courts is concerned in a later decision the Privy Council reiterated its view in unmistakable terms
In Mt Sabitri Thakurain vs Savi  Anr their Lordships observed as follows Section 15 of the Letters Patent is such a law and what it expressly provides namely an appeal to the High Court s appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction is thereby saved
Thus regulations duly made by orders and Rules under the Code of Civil Procedure 1908 are applicable to the jurisdiction exercisable under the Letters Patent except that they do not restrict the express Letters Patent appeal
Though not directly some observations made by this Court also support the consistent view taken by the Privy Council that order 43 Rule 1 applies to the original proceedings before the Trial 211 Judge
In Union of India vs Mohindra Supply Co this Court made the following observations The intention of the legislature in enacting sub section 1 of section 104 is clear the right to appeal conferred by any other law for the time being in force is expressly preserved
This intention is emphasised by section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force
The right to appeal against judgments which did not amount to decrees under the Letters Patent was therefore not affected by section 104 1 of the Code of Civil Procedure 1908
Thus this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by section 104 1 of the Code of 1908 and the decision therefore fully supports the argument of Mr Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and section 104 read with order 43 Rule 1 of the Code of 1908
Similarly in Shankarlal Aggarwal s case supra this Court while construing the provisions of section 202 of the Indian observed as follows There was no doubt either that most of the orders or decisions in winding up would not be comprehended within the class of appealable orders specified in section 104 or O 43 r1
If therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under section 104 and o 43 r1
and very few of the orders passed in the Courts of the winding up would fall within these categories
On the other hand the expression judgment used in cl 15 is wider
The learned Judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single Judge of a High Court would be subject to different rules as to appealability
There is yet another aspect of the matter which shows that section 104 merely provides an additional or supplemental remedy by way 212 of appeal and therefore widens rather than limits the original jurisdiction of the High Court
For instance in this very case with which this Court was dealing an order passed under section 202 of the was appealable to a larger Bench and yet it was argued that the order being of an interlocutory nature would not be a judgment and therefore no appeal would lie to the Division Bench
This contention was negatived by the Supreme Court and it was held that against the order passed by a Trial Judge under the  an appeal would lie to the Division Bench
On a parity of reasoning therefore section 104 read with order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of order 43 Rule 1 to a larger Bench of the High Court without at all disturbing interfering with or overriding the Letters Patent jurisdiction
There are a number of other Acts also which confer additional powers of appeal to a larger Bench within the High Court against the order of a Trial Judge
Take for instance a case under the Arbitration Act
Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken under section 39 of the Arbitration Act an appeal would lie to a Larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award
Section 39 runs thus 39
Appealable orders 1 An Appeal shall lie from the following orders passed under this Act and from no others to the Court authorised by law to hear appeals from original decree of the Court passing the orders An Order i superseding an arbitration ii on an award stated in the form of a special case iiiModifying or correcting an award iv filing or refusing to file an arbitration agreement v staying or refusing to stay legal proceedings where there is an arbitration agreement visetting aside or refusing to set aside an award Provided that the provisions of this section shall not apply to any order passed by a small Cause Court
213 2 No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme Court
It cannot be contended by any show of force that the Order passed by the Trial Judge being an interlocutory order no appeal would lie to the Division Bench or that the provisions of the Arbitration Act giving a right of appeal to a litigant from the order of a Trial Judge to the Division Bench in any way fetter or override the provisions of the Letters Patent
There are however a number of decisions of the various High Courts which have held that the provisions of order 43 Rule 1 clearly apply to a Trial Judge
As early as 1872 the Bombay High Court in Sonba i s case supra held that in regard to appeals against orders of the Trial Judge the practice of the Bombay High Court has been that in all matters the provisions of the Code concerned would be applicable
In this connection Sargent Acting CJ speaking for the court observed as follows the word judgment may be taken to include any preliminary or interlocutory judgment decree order or sentence within the meaning of clause 40 and effect may be given to section 37 by limiting the orders open to appeal to those orders which are expressly declared appealable in the various sections of the Civil Procedure Code or in other words by incorporating the provisions of the Civil Procedure Code relating to appeals with Sec
IS of the Letters Patent and holding the word judgment  to mean all judgments and orders which are appealable under the provisions of the Civil Procedure Code
This case was followed by a Division Bench of the Madras High Court which clearly held that an order passed under section 592 was controlled by section 588
We have already pointed out that in the Code prior to 1882 order 43 Rule 1 appeared in the shape of section 588 and even under order 43 Rule 1 an order rejecting an appeal in forma pauperis is not appealable and does not appear in any of the clauses of order 43 Rule 1
The Madras High Court in Rajgopal s case supra relying on the decision of the Bombay High Court observed thus 214 An order passed under section 592 of the Code of Civil Procedure rejecting an appeal in forma pauperis is not appealable under section 588 which provides that no appeal shall lie from orders not specified in that section
It has already been decided in Achaya vs Ratnavelu ILR that section 15 of the Letters Patent is controlled by a similar section in the Civil Procedure Code which provided that an order shall be final and that enactments to such effect are not beyond the legislative powers of the Governor General in Council
Thus even in the earlier times the High Court had veered round to the view that section 588 would be applicable to the High Courts also even in respect of internal appeals in the High Court
Similarly in Ruldu Singh vs Sanwal Singh Shadi Lal CJ Speaking for the court observed thus Now section 588 of the old Code which has now been replaced by section 104 and Order XLIII rule of the new Code enacted that an appeal lay from the orders specified in that section and from no other orders and it was consequently decided by a Full Bench of that Court in Muhammad Naim ul Lah Khan vs Ihsan Ullah Khan All 226 that clause 10 of the Letters Patent was controlled in its operation by section 588 and that no appeal lay under the Letters Patent from an order made under the Code if it was not one of the orders enumerated in that section
Section 104 of the new Code however expressly saves the right of appeal otherwise provided by any law for the time being in force 
It seems to us that the object of the Legislature in enacting sub section 2 was to make it clear that there was no second appeal under the Code from the orders specified in Sub section 1 of section 104 and that sub section 2 was not intended to override the express provisions of the letters patent The Lahore High Court relied on the decision of the Privy Council in Hurrish Chunder Chowdrys case supra
The High Court further held that section 104 does not in any way take away the 215 right of appeal conferred by the Letters but Patent of the High Court merely bars a second appeal from orders passed under O43 R 1 to Division Bench
A contrary view was taken by the Allahabad High Court in Ram Sarup vs Kaniz Ummehani where the following observations were made It may however be conceded that this saving clause does not occur in sub section 2 of section 104
But under the corresponding section 588 of the old Code where the words were orders passed in appeal under this section shall be final their Lordships of the Privy Council in Hurrish Chunder Chowdhry vs Kalisunduti Debi Cal 482 observed that section 588 which had the effect of restricting certain appeals did not apply to a case where the appeal is from one of the Judges of the High Court to the Full Court to the full Court
In any case section 104 2 does not contain any express provision which would suggest that the provisions of the Letters Patent have been abrogated
We accordingly hold that under clause 10 of the Letters Patent an appeal lies from the order of a single Judge passed in appeal With due deference to the Hon ble Judges we are of the opinion that the decision of the Allahabad High Court on this point is based on a serious misconception of the legal position
It is true that section 104 was introduced by the Code of 1908 and the aforesaid section as we have already indicated clearly saved the Letters Patent jurisdiction of the High Court
From this however it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible
In the first place once section 104 applies and there is nothing in the Letters Patent to restrict the application of section 104 to the effect that even if one appeal lies to the Single Judge no further appeal will lie to the Division Bench
Secondly a perusal of clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge a second appeal would again lie to a Division Bench of the Court
All that the Letters Patent provides for is that where the Trial Judge passes an order an appeal against the judgment of the said Trial Judge would 216 lie to a Division Bench
Furthermore there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under section 100 of the Code of Civil Procedure
Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise
The relevant portion of cl 15 of the Letters Patent may be extracted thus And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras Bombay Fort William in Bengal from the judgment
Of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of India Act made on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal
 A perusal of the Letters Patent would clearly reveal two essential incidents 1 that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High Court and 2 that where the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil a further appeal shall lie only where the judge concerned declares it to be a fit one for appeal to a Division Bench
Thus the special law viz the Letters Patent contemplates only these two kinds of appeals and no other
There is therefore no warrant for accepting the argument of the respondent that if order 43 Rule 1 applies then a further appeal would also lie against the appellate order of the Trial Judge to a Division Bench
As this is neither contemplated nor borne out by the provisions of the Letters Pantent extracted above the contention of the respondent on this score must be overruled
A further second appeal Lying to a Division Bench from an appellate order of the Trial Judge passed under order 43 Rule 1 is wholly foreign to the scope and spirit of the Letters Patent
Un 217 fortunately however the Allahabad High Court in Ram Sarup s case supra refused to follow a Division Bench decision in Piari Lal vs Madan Lal and also tried to explain away the Full Bench decision in Ram Sarup s case supra where it was clearly pointed out that in such cases no further appeal would lie to the Division Bench under the Letters Patent
The distinction drawn by the Allahabad High Court regarding the application of section 104 is a distinction without any difference
Sir John Edge CJ in Muhammad Naim ul lah Khan s case supra dealing with this aspect of the matter observed thus It appears to me that the Code of Civil Procedure Act No XIV of 1882 as did Act No X of 1877 contemplates a High Court in two aspects
It contemplates a High Court doing the ordinary work of a Court of original and appellate jurisdiction having the necessary powers of review and revision in certain cases and certain other powers such as are generally found vested in the Courts of the importance of High Courts whatever those powers may be it is quite clear to my mind that the power conferred on a High Court under Chapter XLV of the Code of Civil Procedure are special powers and entirely distinct from the ordinary powers required by the High Court in the carrying on of its ordinary judicial business and Mahmood J Observed thus To hold then that where this statute of ours namely our present Code of Civil Procedure declares a decree or order non appealable such decree or order can be made the subject of consideration by the whole of this Court under the Letters Patent is to hold that wherever no appeal lies to this Court the ceremony of presenting it to this Court to a Single Judge of this Court who would undoubtedly reject the appeal makes it the subject of consideration by a Bench of the Court
 The other Judges agreed with the view taken by the Chief Justice and Mahmood J In Piari Lal s case supra which was decided after section 104 was introduced in the Code of 1908 the following observations were made 218 A preliminary objection has been taken to the hearing of the appeal based on the Full Bench decision in the case of Muhammad Naimullah Khan vs Ihsan ullah Khan All 226
Section 104 of the Code of Civil Procedure provides for the cases in which an appeal shall lie against an order 
Clause ii provides that No appeal shall lie from any order passed in appeal under this section
The contention of the respondent in the preliminary objection is that no second appeal lies and reliance is placed upon the authority quoted to show that even a Letters Patent appeal is not permissible
We are of course bound by the Full Bench ruling of this Court
It is contended however that the words in section 588 of the Code of Civil Procedure which was in force when the decision in the Full Bench case was given differed from the words of the present Code
The only difference is that in the old Code the words were The order passed in appeals under this section shall be final whereas in the present Code the words are No appeal shall lie
We cannot see how the change in the words can in any way help the appellant
Possibly the reason for the change is that under the words in the old Code it might have been argued that even a revision or a review of judgment would not lie against an order passed by an appellate court
We think the preliminary objection must prevail and we accordingly dismiss the appeal with costs Thus in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed by the district judge under order 43 Rule 1 a further appeal under the Letters Patent was not maintainable
This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched as referred to above
Thus the latter decision of the Allahabad High Court in Ram Sarup s case supra was clearly wrong in holding that an appeal under the Letters Patent would lie even against an appellate order of the Trial Judge passed under O43 R 1 even though it was prohibited by section 104 2 of the Code
Similarly in Chappan s case supra the Court on an interpretation of section 588 which now corresponds to the present Order 43 Rule 1 clearly held that an appeal would lie to the High Court 219 against the orders contemplated in various clauses of section 588 of the Code of 1877
The Court held thus The result of this judgment so far as it applies to the question before us appears to me to come to this that if the order made by a single Judge only amounts to an order such as is intended by chapter XLII of the Code it is not appealable unless it is within section 588 The Madras case heavily relied on the decision of the Privy Council in Hurrish Chunder Chowdry s case supra
In Lea Badin vs Upendra Mohan Roy Chaudhury  Ors
while criticising the judgment of Sir Richard Couch CJ in The Justice of the Peace for Calcutta supra the Court as an alternative argument clearly held that order 43 Rule 1 would apply pro tanto to the Trial Judge and on this ground also the order would be appealable to a Division Bench
In this connection the celebrated jurist Sir Manmatha Nath Mookerjee J Observed as follows But there is another and a far simpler ground on which it must be held that an appeal is competent
The order in the present case is one for which a right of appeal is provided in cl
s of r 1 of or 43 of the Code
Under the present Code Act V of 1908 it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court  Another important decision regarding the applicability of order 43 Rule 1 to an order passed by the Trial Judge was rendered by a Full Bench in Mathura Sundari Dassi vs Haran Chandra Shaha  Ors
where Sanderson CJ Observed thus By the terms of section 117 the Code is made applicable to the High Court and O 43 R 1 gives a right of appeal in the very case under discussion
But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court
I cannot follow that argument
It is part of the defendant s case that O9 R 8 applies
That order is in effect a part of the Civil Procedure Code
It seems to me strange that the plaintiff 220 should be subjected to O 9 R 8 and be liable to have his suit dismissed for want of appearance yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which when his application for reinstatement has been refused gives him a right of appeal against that refusal he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code
I think this is not a true view or a reasonable construction to put upon the Code and the rules made under it
In my judgment the Code and the rules do apply and the plaintiff has a right of appeal and Woodroffo J  made similar observations Whether or not as a question of jurisdiction an appeal lies under clause 15 of the Letters Patent in a case in which an appeal is allowed under the Code I think it may be said that there are prima facie grounds for holding that an appeal should be held to lie under the Letters Patent where it is allowed under the Code for the fact that the Legislature has in the Code allowed an appeal in a particular case a affords to my mind prima facie grounds for supposing that case is of a class which this Court considers appealable under its Letters Patent
Looking at the nature of the order appealed from I think I should hold that it is appealable as a judgement  under the Letters Patent and Mookerjee J Observed thus The term Rule which finds a place in section 117 is defined in clause 18 of section 2 of the Code to mean a rule contained it the First Schedule or made under section 122 or section 125
 our attention has not been drawn to any such rule which makes O 43 R 1 clause c inapplicable
On the other hand O 49 R 3 which excludes the operation of other rules lends support to the contention of the appellant that O 43 R 1 clause c is applicable to the present appeal
section 104 of the Code of 1908 is materially different from section 588 of the Code of 1882
It provides that lie from 221 the orders mentioned in the first clause of that section and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders
 The effect of section 104 is thus not to take away a right of appeal given by clause 15 of the Letters Patent but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable
I hold accordingly that this appeal is competent under Clause c R 1 O 43 of the Civil Procedure Code
I am further of opinion that the appeal is competent also under Clause 15 of the Letters Patent Emphasis ours We find ourselves in complete agreement with the view taken and the reasons given by the three eminent Judges in the aforesaid case which furnishes a complete answer to the arguments of the respondents that order 43 Rule I will have no application to internal appeals in the High Court under the provisions of the Letters Patent
A similar view was taken in Lea Badin s case supra where the following observations regarding the applicability of order 43 Rule I in respect of an order passed by a Trial Judge were made As an order refusing an application for the appointment of a receiver based on provision in the indenture of hypothecation that on a breach of any one of the covenants contained therein the plaintiff s assignor would be entitled to have a receiver appointed the order has determined a right which is one of the matters in the controversy itself and so it satisfies the definition of Couch CJ as well
The order appealed from in this case is in our opinion a judgment  within the meaning of Cl
IS Letters Patent
We may add that there are decisions of this Court in which orders discharging or refusing to discharge a receiver appointed in a suit after the suit had come to an end or had become infectious have been held to be  judgments  and so appealable
But there is another and a far simpler ground on which it must be held that an appeal is competent
The order in the present case is one for which a right of appeal is provided in cl
s R 1 222 O 43 of the Code
Under the present Code Act S of 1908 it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court such a contention was elaborately dealt with and repelled in the case of Malhura Sundari Dassi vs Haran Chandra Shaha  Ors
AIR Emphasis ours In Toolsee Money Dassee  Ors
vs Sudevi Dassee  ors
supra Maclean CJ while relying on the decision of the Judicial Committee in Hurrish Chunder Chowdry s case made the following pithy observations To my mind the first of these points has been authoritatively decided against the view of the present respondents by the Judicial Committee of the Privy Council in the case of Hurrish Chunder Chowdhry vs Kali Sunderi Debi 10 I A 4
I need not travel into the facts of that case but there their Lordships said at page 494 of the report in the Indian Law Reports It only remains to observe that their Lordships do not think that section 588 of Act X of 1877 which has the effect of restricting certain appeals applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court
 It is clear from the report that the point was elaborately argued and the clear expression of their Lordships  opinion must be read in connection with that argument and Prinsep J who agreed with the Chief Justice made the following identical observations We have it therefore that if beyond clause 15 of the Letters Patent 1865 section 588 of the Code of Civil Procedure gives the right of appeal against any order of the description specified therein there is no Court of Appeal constituted to hear it if such order not being a judgment had been made by the Judge on the original Side of the High Court 
I understand this to mean that section 588 does not affect any matter coming within clause 15 of the Letters 223 Patent and if I may venture to say so the reasons which led to the expression of that opinion and which have not been given in the judgment reported may be those stated by me for arriving at the same conclusion
I have no doubt that we are bound to follow to the fullest extent the opinion expressed by their Lordships of the Privy Council that section 588 of the Code does not apply to the case now before us and that this matter has thus become settled law
And Ammer Ali J while dissenting from the applicability of section 588 held that the order appealable under section 588 was a judgment within the meaning of the Letters Patent
Two decisions of the Rangoon High Court also have consistently taken the view that the provisions of section 104 read with order 43 Rule I apply to the Trial Judge
In P Abdul Gaffor vs The Official Assignee 1 the following observations were made For an order made in exercise of the ordinary original civil jurisdiction to be appealable it must come either under order XLIII Rule 1 or be a judgment within the meaning of Section 13 of the Letters Patent so that for the purpose of this application the appellant must establish that it is a judgment within the meaning of section 13
Emphasis ours The question of the applicability of order 43 Rule I to an appeal from the Trial Judge under the Letters Patent was raised and decided by the Jammu  Kashmir High Court in Abdul Samad  Ors
vs The State of J  K 2 a decision to which one of us Fazal Ali CJ as he then was was a party
After an exhaustive review of various decisions on the subject the High Court observed as follows G The legal position that emerges therefore is that orders of the character specified in Section 104 and order 43 Rule I Civil PC excepting clause JJ thereof would 224 be construed as judgments and an appeal against any one of such orders would lie to the
Division Bench of the High Court notwithstanding the fact that it is passed by one of the judges of the High Court sitting on the original side
It may be mentioned that like the Presidency High Courts the High Court of Jammu  Kashmir had also been invested with ordinary civil original jurisdiction
The question of the applicability of order 43 Rule 1 to an appeal against an order of a Trial Judge to the Division Bench was directly in point and fully considered by a Division Bench of the Calcutta High Court and a Full Bench of the Rangoon High Court
In Kumar Gangadhar Bagla vs Kanti Chunder Mukerjee  Anr
while dwelling on this aspect of the matter it was observed as follows Mr Bose did not seek to argue that the formal order of the 7th of June 1935 was one of the appealable orders provided for in the Code of Civil Procedure
On the contrary he went so far as to aver with considerable vehemence that neither sec 104 nor order XLIII r l of the Civil Procedure Code has any application to the High Court
I would point out that it is clear from sec
117 of Code of Civil Procedure and still clearer from Or
XLIX r 3 CPC that both sec
104 and Or
XLIII r 1 do apply to the High Court
Emphasis ours It is manifest from the observations made above that in view of the clear and explicit provisions of section 117 and order 49 Rule 3 which while exempting other provisions from the jurisdiction of the High Court did not exempt the various clauses of order 43 Rule 1
An identical view seems to have been taken by Sir Page CJ in a Full Bench decision of the Rangoon High Court in In re Dayabhai Jiwandas  Ors
supra where the Chief Justice pithily observed as follows  In many statutes in India of course a Right of appeal from an order passed pursuant to the statute is expressly provided and in such cases an appeal will lie on the terms and conditions therein prescribed
I will not pause to enumerate or discuss these enactments although 225 many such statutes were cited at the Bar
But except A where otherwise a right of appeal adhoc is given under some statute or enactment having the force of a statute the right of appeal from orders that do not amount to judgment is regulated by the provisions of the Code of Civil Procedure see section 104 and order 43 Rule 1
Thus there appears to be a general consensus of judicial opinions on the question of the applicability of order 43 Rule 1 to Letters Patent appeals
This now brings us to the second limb of the argument of Mr Sorabjee that even assuming that order 43 Rule I does not apply to the High Court so far as the Trial Judge of the said court is concerned there can be no doubt that the orders indicated in various clauses of order 43 Rule 1 possess the attributes and incidents of a final order which conclusively decides a particular issue so far as the Trial Court is concerned
Thus there can be no difficulty even without applying order 43 Rule 1 to hold by a process of analogical reasoning that the appeals and orders mentioned in the various sub clauses would amount to a judgment within the meaning of cl 15 of the Letters Patent because they contain the traits trappings and qualities and characteristics of a final order
In other words the argument advanced was that we could still apply the provisions of order 43 Rule 1 by the process of analogy
We fully agree with this argument because it is manifest that the word judgment  has hot been defined in the Letters Patent but whatever tests may be applied the order passed by the Trial Judge appealed against must have the traits and trappings of finality and there can be no doubt that the appealable orders indicated in various clauses of order 43 Rule I are matters of moment deciding valuable rights of the parties and in the nature of final orders so as to fall within the definition of judgment 
This Court in Radhey Shyam vs Shyam Behari Singh 1 clearly held that an application under order 21 rule 90 to set aside the auction sale is a judgment as the proceeding raises a controversy between the parties regarding their valuable rights
In this connection this Court observed thus  In our view an order in a proceeding under o XXI r 90 is a judgment inasmuch as a proceeding raises 226 a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction sale
On a parity of reasoning an order refusing to appoint a receiver or grant an injunction and similar orders mentioned in various clauses of order 43 Rule 1 fall within the tests laid down by this Court in the aforesaid case
We are aware that there are some decisions which have taken a contrary view by holding that section 104 read with order 43 Rule I does not apply to a Trial Judge under the Letters Patent
These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of sections 104 and 117 and order 49 Rule 3 but seem to have proceeded on the basis that the Letters Patent being a special law or a special jurisdiction the same over rides section 104 which in terms does not apply where a special law makes certain special provisions
We now proceed to discuss these cases briefly
In Pandy Walad Dagadu Mahar  Anr
vs Jammadas Chotumal Marwadi 1 the identical point which is at issue in the instant appeal was not involved and the finding given by the High Court was merely incidental
The Division Bench seems to have relied on a judgment of Sir Basil Scott and Hayward JJ
where the question was only incidentally dealt with
Martin J
In Pandy s case observed thus  Shortly stated therefore this Full Bench decision amounts to this
that appeals under the Letters Patent are governed by the Letters Patent and appeals under Code are governed by the Code
Further the Code only deals with appeals from certain Courts and it does not deal with appeals within the High Court from the decision of one Judge of the Court to another
That is in my opinion the true view of the relative position of the Letters Patent and the Code
With due respect a close analysis of this decision would reveal that the Judges followed a fallacious process of reasoning According to their opinion the appeals under the Code of Civil 227 Procedure and those under the Letters Patent were so to say two separate compartments having different spheres of their own
With due deference we might point out that such a view is based on a total misinterpretation and misconstruction of the true nature and object of the Code of Civil Procedure and the Letters Patent
In fact as we have pointed out earlier there is no inconsistency whatsoever between the Letters Patent and section 104 read with order 43 Rule l The first premise of the Court that internal appeals in the High Court were governed by the Letters Patent alone and not by the Code appears to be legally fallacious
We have already pointed out that a large number of decisions including the Privy Council have clearly taken the view that although the Letters Patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench or to quote the Bombay Judges to internal appeals 
Secondly the Court completely overlooked the legal effect of section 117 and order 49 Rule 3 which completely demolishes the presumptuous process of logic adopted by the court
Thirdly the Court appears to have overlooked that far from excluding the Code there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court viz from an order passed by a Trial Judge to a larger Bench for instance section 39 of the Arbitration Act or section 202 of the Indian and other similar local or special Acts
If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code starting from the presentation of the plaint to the delivery of judgment
Fourthly the Division Bench does not seem to have considered the fact that what the Letters Patent did was merely to confer original civil jurisdiction on the High Court to be exercised by a Single Judge who would undoubtedly be a Trial Judge but of an elevated status so that only such suits could be filed in the Court of the said Judge as are of a very high valuation which may differ from High Court to High Court
This was done in order that in heavy suits involving substantial questions of fact and law the hearing of the suit by a senior Court of the status of a High Court Judge would repose endeanr and generate greater confidence in the people
Thus if interlocutory orders passed by District courts in the mofussil could be appealable to the High Court there was no reason why inter 228 locutory orders passed by a Trial Judge could not be appealable to a larger Bench irrespective of the question whether or not they were judgments within the meaning of cl 15 of the Letters Patent
This appears to us to be the cardinal philosophy of the Code in applying the provisions of order 43 Rule I to the original suit tried by the Single Judge Trial Judge
Furthermore the concept of internal appeals in the High Court seems to be a legal fiction without any factual existence imported by some of the High Courts in order to get rid of some of the provisions of the Code of Civil Procedure which is totally opposed not only to the aim and object of the Code but also to the very spirit of the Letters Patent
In a later judgment of the Bombay High Court in Vaman Ravji Kulkarni vs Nagesh Vishnu Joshi  Ors1 the following observations were made I am with respect of opinion that the view taken by the full Bench of the Madras and Calcutta High Courts in the cases referred to above is correct and that the question must be regarded as having been finally settled by the decision of the Privy Council in 10 I A 4
Hurrish Chunder Chowdry vs Kali Sundari Debi section 104
Civil PC which refers only to appeals to the High Court from Courts subordinate to it cannot apply to appeals filed under Cl
15 of the Letters Patent from a single Judge OF the High Court to a bench
Wadia J  
There can be no doubt that the provisions of the Letters Patent have conferred special powers regarding appeals within the High Court
Those powers are not specifically taken away by section 104 Civil PC and are not therefore affected by it 
Special enactments are not repealed by later general Acts unless there be some express reference to the previous legislation or a necessary inconsistency in the two Acts standing together which prevents the maxim from being applied
Sub section 2 of section 104 Civil PC does not refer to the Letters Patent and say that in spite of Cl 15 of the Letters Patent no appeal lies from any order passed in an appeal under Sub section
Sub section
2 is in no way 229 inconsistent with cl 15 of the Letters Patent and the two can stand together the former applying to appeals under the Code and the latter to special appeals within the High Court
I am satisfied that section 104 Civil PC 
does not control cl 15 of the Letters Patent and in spite of the absence of a saving clause in sub section
2 of section 104 does not affect or cut down the right of appeal conferred by the Letters Patent Lokur J As regards the first part of the observations of Wadia J we are constrained to observe that the learned Judge has not correctly construed the true ratio of the decision of the Privy Council in Hurrish Chunder Chowdry s case supra where as indicated the Privy Council has in express terms held that section 588 which now corresponds to order 43 Rule 1 clearly applies to appeals against orders of a Trial Judge to a larger Bench of the High Court
Similarly the observations made by Lokur J run against the plain interpretation of section 104 by assuming that there is a conflict between section 104 read with order 43 Rule I and the Letters Patent when in fact as pointed out there is no such conflict at all all that section 104 does is to give an additional jurisdiction apart from the Letters Patent which is in no way unconstitutional with the Letters Patent
We may like to observe here that there is no non obstante clause in the provisions of the Letters Patent to indicate that the provisions of the Code of Civil Procedure particularly section 104 would not apply either expressly or by necessary intendment
In this view of the matter therefore we are clearly of the opinion that the Bombay decisions are wrongly decided and must therefore be overruled
In Vishnu Pratap and Ors
vs Smt
Revati Devi and Orsl the Court held that no appeal against an order passed by a Trial Judge under section 202 of the would lie to a Division Bench in view of the Letters Patent
This argument was negatived and overruled in Shankarlal Aggarwal s case supra as already discussed above
As regards the applicability of order 43 the following observations were made in Vishnu Pratap s case It is true that orders 40  43 both apply to the High Court but the question here is whether o 43 makes provision for an appeal from one court to another or it is intended to cover cases of an appeal from one Judge to a bench of 230 the same Court
While section 96 deals with original decree section 104 Civil PC deals with orders not being decrees and the orders that are appealable are set out under o 43 CPC The question of an appeal from one Court to another Court is no doubt governed by the provisions of the Code of Civil Procedure but the provision for appeal from one Judge of a Court to a bench of the same Court is not provided for by the Code and must be governed by the Letters Patent
If section 104 read with O 43 makes all these orders appealable then what would be the Court to which appeals would lie from an order passed by a Division Bench and not by a single Judge
We are not satisfied that section 104 or O 43 ever intended to deal with appeals from a Judge or Judges of one Court to a larger number of Judges in the same Court
It is no doubt true as has been held by their Lordships of the Judicial Committee
in Mt Sabitri Thakurain vs Savi  AIR that section 104 as well as o 43 apply to High Courts but it does not mean that they give any right to an appeal from an order by a Judge or Judges of that Court to a larger number of Judges of the same Court independently of the Letters Patent of the Court
As we have said if o 43 or section 104 Civil PC were made applicable per se without reference to the Letters Patent then even an order passed by a bench would come under those provisions but before an appeal can be filed there will have to be a Court constituted for hearing an appeal and the only provision for hearing an appeal from the judgment of a single Judge by a bench of two or more Judges of the same Court is contained in the Letters Patent of the Chartered High Courts
An order to come under the Letters Patent must be a judgment and if an order is not a judgment then cl 10 of the Letters Patent would not apply and there is no provision for constituting a bench of more than one Judge to hear such an appeal
We therefore fail to understand how O 43 R 1 or section 104 Civil PC without any reference to cl 10 of the Letters Patent can help the appellants  In this case also the line of reasoning adopted by the court is the same as that of the Bombay High Court referred to above
231 One of the reasons given is that while order 43 makes provision for A appeal from one court to another it is not intended to apply to an appeal from one Judge of the High Court to a bench of the same Court
No reasons have been given by the Judges for holding why this is not so particularly in the face of the clear provisions of section 117 and order 49 Rule 3 as discussed above
Thus the first part of R the reasoning of the High Court is totally irrelevant and wholly unintelligible
The point at issue is if section 104 read with order 43 Rule I applies to an order passed by District Courts in the mofussil why could it not apply to the one passed by the Trial Judge when the Letters Patent does not in any way bar such an appeal
Another ground taken by the Court is that if order 43 Rule I is made applicable to the High Court then a strange anomaly will arise in that where an appeal lies to the Division Bench how could a further appeal lie to some other bench of the court
This argument also is based on a misconception of order 43 Rule 1
It is manifest that if order 43 Rule I were to apply to orders passed by the Trial Judge the order would be one passed by only one Judge of the High Court and therefore in the context of the original jurisdiction exercised by a Single Judge of the High Court the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court
We are unable to see any anomaly or inconsistency in this position
Thirdly the court seems to have relied on a decision of the Privy Council in Mt Sabitri Thakurain vs Savi AIR and has interpreted the ratio of this case to mean that section 104 would not apply to High Courts which is exactly what the Privy Council does not say
With due respect therefore the learned Judges have not correctly appreciated the decision of the Privy Council which has nowhere indicated that order 43 Rule I would not apply to internal appeals in the High Court
On the other hand their Lordships of the Privy Council had held to the contrary as discussed above
For these reasons therefore we are of the opinion that this case has also not been correctly decided and we disapprove the reasons given and the decision taken in this case
We might also notice a full Bench decision of the Nagpur High Court in Madhukar Trimbaklal vs Shri Sati Godawari Upasani Maharaj 232 of Sakori  Ors
1 where Niyogi J Observed as follows  Clause 10 Letters Patent defines the appellate jurisdiction of the High Court vis a vis the judgment passed by a single Judge of that Court
It should be observed that the Civil Procedure Code does not make any provision in this behalf
The right of appeal from a decree of a single Judge to the High Court is not governed by section 96 or section 100 or section 104 Civil PC but by cl 10 Letters Patent
This right of appeal depends on the special provision made in the Charter
section 4 Civil PC provides that the Code does not affect any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force
Since the special jurisdiction or power is conferred on the High Court by cl 10 Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court
With due respect we are unable to agree with the opinion expressed by Niyogi J who has made a bald statement that the Code of Civil Procedure does not make any provision in regard to an appeal from an order passed by a Trial Judge to a Division Bench and that the right of appeal from a decree of a Civil Judge to a High Court is not governed by section 100 or section 104 but by cl 10 of the Letters Patent of the Nagpur High Court
Here again the learned Judge seems to have committed an error apparent on the face of the record
An examination of the language of sections 96 to 100 would clearly show that the scope of these sections is quite different from that of section 104
Sections 96 to 100 expressly deal with the forum of appeal provided by the Code against decrees or orders amounting to decrees passed by the District Court in the mofussil
Section 104 is couched in very general terms and cannot be limited to appeals against orders passed by the courts contemplated in sections 96 to 100
Moreover section 104 does not deal with appeal against a decree at all but provides a forum for appeal against orders under order 43 Rule I which are mainly orders of a final or quasi final nature passed during the pendency of a suit
Section 104 therefore has a much wider application as discussed above and neither overrides the Letters Patent nor is it inconsistent with the same
For these reasons therefore we are unable to accept the line of reasoning adopted by the aforesaid High Court in holding 233 that section 104 does not apply to internal appeals in the High Court and A we accordingly overrule this decision
A some what identical view was taken by a later decision of the Nagpur High Court in Ratanlal Jankidas Agarwal vs Gajadhar  Ors
l Where the following observations were made Firstly O 43 has not been made applicable to appeals from appellate decrees by o 43 R 1 though the rules of o 41 have been made applicable to them
So section 104 bars an appeal from the order
Moreover the Civil Procedure Code makes no provision for an appeal within the High Court that is to say from a single Judge of the High Court
Power is given to a Division Bench of the High Court to hear appeals from decisions of a single   Judge of the High Court only under cl 10 of the Letters Patent
For the reasons which we have already given above we hold that the learned Judges have fallen into the same error which was committed by the earlier Nagpur case
The first reasoning given by Mangalmurti J that order 43 is not applicable to appeals from appellate decrees is wholly irrelevant because the question is whether under order 43 Rule 1 an appeal could lie from a Trial Judge to a Division Bench of the High Court
Secondly the learned Judge says that section 104 bars a second appeal from the order and that the Code of Civil Procedure makes no provision for appeal within the High Court
Here again the learned Judge is wrong because we have already pointed out that as far back as Hurrish Chunder Chowdry s case supra it was clearly held by the Judicial Committee that section 588 was applicable even to internal appeals in the High Court
On a parity of reasoning therefore on the basis of which we have overruled the decisions of the other High Courts taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose JJ
in the aforesaid case and hold that this case is not correctly decided
A later decision of the Allahabad High Court also seems to have taken the same view
In Standard Glass Beads Factory  Anr
vs Shri Dhar  Ors
2 the following observations were made  Such an order if made by a subordinate court is appealable under or
43 R 1 CPC it is as we have seen an order from which in England an appeal lies without 234 leave to the Court of Appeal
If the narrower view of the meaning of the word judgment  be correct such an order when made by a Judge of a High Court in India exercising original jurisdiction would not be appealable
Here also with due deference to the Judges constituting the Full Bench we are of opinion that they committed an error in drawing inspiration from the procedure prevailing in England in the court of appeal
In the first place the hierarchy of the Courts in India under the Civil Procedure Code is essentially different from that in the United Kingdom
Secondly there is no provision existing in the English law corresponding to Order 43 Rule 1 of an appeal from a Trial Judge to a Division Bench under various circumstances
Lastly this case does not seem to have considered a large number of decisions referred to by us clearly holding that section 104 read with order 43 Rule I applies to appeals under the Letters Patent in the High Court
For these reasons therefore we hold that this case also was not correctly decided and must be overruled
Another case taking a contrary view is again a case of the Bombay High Court which also makes a rather interesting reading
In JK Chemicals Ltd vs Kreba and Co 1 Desai J speaking for the court observed on this part of the case thus The reply to the said argument is that the provisions of section 104 and O 43 R I provide for an appeal only from the subordinate Court to the higher Court and not from one part of the Court to the other
It has been held that the provisions relating to appeals contained in the Civil Procedure Code deal with appeals from subordinate Courts to higher Courts and do not deal with appeals from the decisions and decrees of the High Court in the exercise of its ordinary or extra ordinary civil jurisdiction except so far as the appeal to the Supreme Court is concerned
The subject of an appeal from the decision of a single Judge of the High Court to a Division Bench of the same High Court is dealt with only under the Letters Patent and such right is not governed by the provisions of the Civil Procedure Code relating to appeals
This view has been taken consistently by the High Courts in India and also by the Privy Council see Hurrish Chunder vs Kali Sunderi Debi 1883 ILR at p 494
235 The first part of the observations follows the reasonings of the A two decisions of the Bombay High Court discussed above and are therefore open to the same criticism which we have levelled against the previous decisions
Secondly the court seems to think that all the High Courts in India have consistently taken the view that order 43 Rule 1 does not apply to internal appeals in the High Courts
This is doubtless factually incorrect because we have referred to a large number of decisions which have taken a contrary view
The High Court was therefore not quite correct in observing that the High Courts in India had taken a consistent view in regard to this matter
Thirdly the High Court seems to have relied heavily on the decision of the Privy Council in Hurrish Chunder Chowdry s case supra and on Chappan s case supra in holding that order 43 did not apply to internal appeals in the High Courts which were governed by the Letters Patent alone
Here also with due respect the High Court has gravely erred
We have pointed out while dealing with Hurrish Chunder Chowdry s case supra that the Privy Council had clearly laid down that section 588 applied to the High Court and this position has been understood in this very sense by several judgments discussed above
The High Court therefore has not correctly appreciated the real ratio of the Privy Council case referred to above
As regards Chappan s case supra the conclusion of the High Court is not borne out by the ratio of the Full Bench in the said case
It would appear that the Full Bench in the aforesaid case was concerned with two questions 1 Whether in view of section 622 of the old Code which corresponds to section 115 of the Code of 1908 an order passed by a trial Judge could be revised by a larger Bench and 2 Whether the right of appeal given by cl 15 of the Letters Patent against an order passed by a trial Judge was controlled and limited by sections 588 and 591 of the Code of 1877 which now corresponds to order 43 Rule 1
In the instant case we are not concerned with the revisional power but only with what old section 588 was
Far from deciding that section 588 was not controlled by the Letters Patent the learned Judge decided to the contrary
To begin with Benson J formulated 236 the questions referred to the Full Bench thus  1 Whether the jurisdiction exercised by the High Court under section 622 Civil Procedure Code is included in the expression appellate jurisdiction as used in section 13 of the High Court Act 24 and 25 Vict
104 and in section 36 of the Letters Patent of 1866 and 2 Whether the right of appeal given by section 15 of the Letters Patent against an order passed by a single Judge of the High Court is controlled and limited by sections 588 and 591 Civil Procedure Code I am of opinion that both of these questions must be answered in the affirmative
and Shephard Acting CJ Observed as follows Accordingly I think it must be assumed that the judgment of a single Judge acting under section 622 of the Code is open to appeal unless the right of appeal has been taken away by section 588 of that Code
On that question I entirely agree with Mr Justice Subramania Ayyar
The question is in my opinion concluded by authority which it is beyond our province to criticise
and Boddam J expressed the following opinion  The result of this judgment so far as it applies to the question before us appears to me to come to this that if the order made by a single Judge only amounts to an order such as is intended by chapter XLIII of the Code it is not appealable unless it is within section 588
and Moore J Observed as follows  It is clear however that this could not have been done for the provisions of sections 588 and 591 do in certain cases most certainly apply to the High Court
For example section 588 clause 1 provides that if a District Munsif passes an order under section 20 of the Code an appeal lies to the District Judge but that there is no second appeal to the High Court while if a District Judge passes 237 such an order an appeal can be preferred to the High Court
Whatever view be taken of section IS of the Letters Patent it would have been impossible to include section 588 among those sections that do not apply to the High Court
Thus the ratio decidendi of the decision clearly goes to indicate that the Full Bench of the Madras High Court had held in no uncertain terms that section 588 applied to the High Court and orders mentioned therein passed by a Trial Judge would be appealable to a larger Bench
This therefore knocks the bottom out of the decision of the Bombay High Court when Chappan s case supra in no way supported the view taken by them
For the reasons given above we hold that JK Chemicals s case supra was also wrongly decided and can no longer be treated as good law
It is rather unfortunate that despite clear explicit pointed and pragmatic observations of the Privy Council in Hurrish Chunder Chowdry s case supra and further clarification by the legislature by introducing section 104 of the Code of 1908 some of the High Courts n seem to have stuck to the antiquated view that the provisions of order 43 Rule I do not apply to internal appeals within the High Courts
Thus after considering the arguments of counsel for the parties on the first two limbs of the questions our conclusions are  1 That there is no inconsistency between section 104 read with order 43 Rule I and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of section 104 read with order 43 Rule I or to show that these provisions would not apply to internal appeals within the High Court
2 That even if it be assumed that order 43 Rule I does not apply to Letters Patent appeals the principles governing these provisions would apply by process of analogy
3 That having regard to the nature of the orders contemplated in the various clauses of order 43 Rule 1 there can be no doubt that these orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and 238 that these orders do possess the attributes or character of finality so as to be judgments within the meaning of cl 15 of the Letters Patent and hence
appealable to a larger Bench
4 The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position
This now brings us to the second important point which is involved in this appeal
Despite our finding that section 104 read with order 43 Rule I applies to Letters Patent appeals and all orders passed by a Trial Judge under clauses a to w would be appealable to the Division Bench there would still be a large number of orders passed by a Trial Judge which may not be covered by order 43 Rule l
The next question that arises is under what circumstances orders passed by a Trial Judge not covered by order 43 Rule 1 would be appealable to a Division Bench
In such cases the import definition and the meaning of the word judgment  appearing in cl
15 assumes a real significance and a new complexion because the term judgment  appearing in the Letters Patent does not exclude orders not falling under the various clauses of order 43 Rule 1
Thus the serious question to be decided in this case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word judgment  used in cl
IS of the Letters Patent
The meaning of the word judgment  has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time unfortunately no unanimity has so far been reached
As held by us earlier it is high time that we should now settle this controversy once for all as far as possible
We now proceed to deal with the main controversy as to what is the true scope meaning and purport of the word judgment  used in cl 15 of the Letters Patent
Numerous authorities on both sides were cited before us in the course of the very able arguments advanced by counsels for the parties and it appears that there are three leading judgments which have spelt out certain tests to determine as to when an order passed by a Trial Judge can be said to be a judgment  within the meaning of
cl IS of the Letters Patent
A very narrow view on this point was taken by a Division Bench 239 Of the Calcutta High Court in the case of The Justice of the Peace for Calcutta supra where Sir Couch CJ On an interpretation of cl 15 of the Letters Patent observed thus We think that judgment 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 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
 An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the Trial Judge would be a judgment 1 a decision which affects the merits of the question between the parties 2 by determining some right or liability 3 the order determining the right or liability may be final preliminary or interlocutory but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later
Thus examining the tests laid down by Sir Richard Couch CJ it seems to us that the view taken by the learned Chief Justice appears to place a very strict and narrow interpretation on the word judgment  under which orders deciding matters of moment or valuable right of the parties without finally deciding the suit may not amount to a judgment and hence not appealable
In giving this interpretation the learned Chief Justice was guided by two considerations I that a liberal interpretation may allow vexed litigants to carry any discretionary order of the Trial Court in appeal and 2 that it would confer more extensive right to appeal against the Judge sitting on the original side than the right of appeal given to a Trial Judge sitting in the mofussil
We are doubtless impressed with the argument of the Chief Justice and fully appreciate the force of the reasons given by him but we feel that despite those considerations the law must be interpreted as it stands and a court is not 240 justified in interpreting a legal term which amounts to a complete distortion of the word judgment  so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals
In such cases a just balance must he struck so as to advance the object of the statute and give the desired relief to the litigants if possible
Although it is true that this decision is practically the locus classicus so far as the Calcutta High court is concerned and has been consistently followed by later decisions at the same time it cannot be denied that in a number of cases the conscience of the Judges was so shocked that they tried to whittle down or soften the rigours of this decision so much so that in one case the observations of the Chief Justice were not only not followed but were described as antiquated and in other cases the Judges strongly expressed them selves that the High court should give up its fondness to stick to the principles laid down by the learned Chief Justice
It is not necessary for us to burden this judgment with later decisions of the Calcutta High court in trying to comment on the correctness of the principles laid down by sir Couch c J but a few instances may be quite revealing
In Chandi Charan Saha vs Jnanendra Nath Bhattacharjee and Ors
l Sir Asutosh Mookerjee in his leading judgment modified the strict rule of interpretation of judgment  laid down by sir Couch CJ and pointed out that the words merits of the question between the parties by determining a right of liability  were not to be confined or restricted to the controversy in a suit itself but could take within its fold any right involved in any application which puts an end to the suit or the proceeding
sir Mookerjee J has widened the scope of the observations of sir Couch c
J and adopted some of the observations of Sir White CJ in Tuljaram Row s case supra and in this connection observed thus It is plain that the expression some right or liability is not restricted to the right in controversy in the suit itself on the other hand if we adopt the wider definition formulated by White CJ in the case of Tuljaram Row vs Alagappa Chettiar ILR  the decision is unquestionably a judgment within the meaning of the Letters Patent
The test is not what the form of the adjudication is but what is its effect in the suit or proceeding in which 241 it is made
If its effect whatever its form may be and whatever may be the nature of the application on which it is made is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not complied with is to put an end to the suit or proceeding the adjudication is a judgment Mathura vs Haran Cal 857
 In Lea Badin s case supra the following observations were made To remove the incongruity which appears in the decision of this Court and to lay down some definite rule by which orders might be tested when it has to be determined whether or not they are judgments  within the meaning of the clause this Court will some day have to abandon its fond adherence to the antiquated definition of Couch CJ and boldly acknowledge its allegiance to the tests laid down by White CJ Emphasis supplied After making these observations the Court further reiterated the position in the following words
In more decisions than one of this Court this definition of Judgment  given by Couch CJ has been described as classical and yet in a long course of decisions this Court has repeatedly expressed the view that the definition is absolutely exhaustive
Treating this definition as not of an inflexible character and yet not expressly purporting to extend it the Court has in numerous cases emphasised the necessity of scrutinizing the nature of the decision in each particular case in order to find out whether the decision amounts to a judgment  within the meaning of the Clause
In Shorab Merwanji Modi and Anr
vs Mansata Film Distributors and Anr the following observations were made On a strict construction of the Calcutta test the Tight or liability must mean some right or liability which is 242 a subject matter of controversy in the suit or proceeding but in its application to individual cases that strict construction has not been adhered to and was indeed often departed from by Couch J himself who was the author of the test
Orders concerning the jurisdiction of the Court to entertain a suit as distinguished from matters of the actual dispute between the parties were held by him to come within the category of judgments In Mooammed Felumeah vs section Mondal  Ors
the Court pithily observed as follows Now so far as this Court is concerned there is a considerable body of judicial opinion which while holding that Sir Richard Couch s above definition is classical and of pre eminent practical importance and usefulness has consistently refused to regard it as in any sense
exhaustive or inflexible
Indeed in essence and truth it has been accepted merely as the starting point on a broad open field stretched in front of it in all its vastness and immense magnitude and Judges have always endeavoured to extend it and expand the different aspects of the term and to give it a wide and extended meaning though of course within certain limits
 The other leading case which puts even a narrower interpretation and in our opinion a clearly wrong one on the word judgment  is the Full Bench decision of the Rangoon High Court In Re Dayabhai Jiwandas s case supra where the following observations were made I am of opinion that in the Letters Patent of the High Courts the word judgment  means and is a decree in a suit by which the rights of the parties at issue in the suit are determined With due respect to the learned Chief Justice and the Judges who agreed with him we are unable to accept the interpretation of the word judgment  given by the Chief Justice which runs counter to the very spirit and object of the word judgment  appearing in cl 15 of the Letters Patent
The learned Chief Justice seems to 243 have fallen into the error of equating the word judgment  with decree  as used in the Code of Civil Procedure when as pointed out above the words judgment  and decree  used in the Code cannot form a safe basis to determine the definition of the word judgment  in the Letters Patent particularly when the Letters has deliberately dropped the word decree from judgment  We are therefore unable to hold that the view taken by the Chief Justice Sir Page is correct and accordingly overrule the same
The next leading case which lays down the test of a judgment  and which seems to have found favour with most of the High Courts in India is the test laid down by Sir Arnold White CJ in Tuljaram Row s case supra where the learned Chief Justice pointedly spelt out various tests and observed thus The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made
If its effect whatever its form may be and whatever may be the nature of the application on which it is made is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not complied with is to put an end to the suit or proceeding I think the adjudication is a judgment within the meaning of the clause
An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not in my opinion a judgment within the meaning of the Letters Patent
 I think too an order on an independent proceeding which is ancillary to the suit not instituted as a step towards judgment but with a view to rendering the judgment effective if obtained eg an order on an application for an interim injunction or for the appointment of a receiver is a judgment  within the meaning of the clause
 Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import and definition of the word judgment  as used in cl
IS of the Letters Patent  1 It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding 244 2 If irrespective of the form of the suit or proceeding the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment 3 Similarly the effect of the order if not complied with is to terminate the proceedings the said order would amount to a judgment 4 Any order in an independent proceeding which is ancillary to the suit not being a step towards judgment but is designed to render the judgment effective can also be termed as judgment within the meaning of the Letters Patent
So far as this test is concerned the learned Chief Justice had in mind orders passed by the Trial Judge granting or refusing ad interim injunction or appointing or refusing to appoint a receiver
5 An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings
6 An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit so far as that particular adjudication is concerned would certainly amount to a judgment within the meaning of the Letters Patent
Similarly Krishnaswami Ayyar J who agreed with tile Chief Justice in the above case pointed out that even an interlocutory judgment which determines some preliminary or subordinate point or plea or settles some step without adjudicating the ultimate right of the parties may amount to a judgment
With due respect we think that if the observations of Krishnaswamy Ayyar J are carried to its logical limit every interlocutory order would have to be held to be appealable
So far as the tests laid down by White CJ and as analysed by us are concerned we are inclined to agree generally with these tests though we feel that some of the tests laid down are far too 245 wide and may not be quite correct
While the view taken by Sir Richard Couch CJ in The Justice of the Peace for Calcutta supra is much too strict the one taken by Sir White CJ is much too wide
The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists
We might point out that the tests laid down by the Calcutta High Court have been consistently followed by the Bombay High Court and also by a large majority of the later decisions of the Calcutta High Court in Lea Badin vs Upendra Roy Chaudhury Kumar Gangadhar vs Kanti Chunder Mukherjee Shorab Merwanji Modi vs Mansata Film Distributors Mohammed Felumeah vs section Mondalsupra Some of the decisions have sounded a discordant note and have gone to the extent of characterising the view of Sir Couch CJ as being antiquated and have strongly expressed the view that the Calcutta High Court should give up its fondness for the strict test laid down by Sir Couch in The Justice of the Peace for Calcutta s case
On the other hand the tests laid down by Sir White CJ in Tuljaram Row s case have been followed by the Lahore High Court in Ruldu Singh vs Sanwal Singh and by some other High Courts in Standard Glass Beads Factory Shri Dhar  Ors
and later decisions of the Madras High Court as also by Andhra Pradesh High Court in Kuppa Viswappathi vs Kuppa Venkata Krishua Sastry
A Full Bench of the Allahabad High Court however in Mt Shahzadi Begam vs Alak Nath dissented from the view taken by the Madras High Court and held that the tests laid down by that High Court in the aforesaid case were rather too wide
In this connection Sulaiman CJ speaking for the Court observed as follows  We would like to point out that the test laid down by the learned Chief Justice of the Madras High Court is put in too wide a language and cannot be accepted as laying down the correct criterion
Similarly in a later Full Bench decision of the Nagpur High Court in Manohar Damodar Bhoot vs Baliram Ganpat Bhoot Hidayatullah
J as he then was who wrote the leading judgment very pithily described the essential requisites and the exact meaning 246 of the word judgment  as used in the Letters Patent and observed thus A judgment means a decision in an action whether final preliminary or interlocutory which decides either wholly or partially but conclusively in so far as the Court is concerned the controversy which is the subject of the action
It does not include a decision which is on a matter of procedure nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective
The decision need not be immediately executable per se  but if left untouched must result inevitably without anything further save the determination of consequential details in a decree or decretal orders that is to say an executive document directing something to be done or not to be done in relation to the facts of the controversy
The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy
The pointed observations of the Hon ble Judge try to synthesize the conflicting views taken by the Calcutta and the Madras High Courts and in our opinion they represent the true scope and import of the word judgment  as used in the Letters Patent
The learned Judge while making these observations has made an exhaustive analysis of a large number of cases
Having dealt with the main cases of the various High Courts reflecting different and variant views we do not think it necessary to multiply authorities on this subject which have been fully debated in the decisions we have referred to
We shall now proceed to refer to the decisions of this Court with respect to the incidental observations made by them regarding the scope and meaning of the word judgment  before giving our own view of the matter
Before however dealing with the cases of this Court we might indicate that in view of the decisions taken by us regarding the applicability of section 104 read with order 43 Rule 1 even to internal appeals in the High Court the controversy regarding the meaning of the word judgment  has been largely narrowed down and sufficiently abridged because the orders mentioned in clauses a to w of order 43 Rule 1 having 247 been held to be appealable there would be only a few cases left in A which the question as to whether or not the orders passed by the Trial Judge are judgments would arise
After discussing the decisions of this Court we shall give a list of illustrative cases which may justly be described as judgment  within the meaning of the Letters Patent so as to cover almost the entire field though a few cases still may have to be determined according to the principles laid down
The first decision of this Court which is relevant is Asrumati Debi s case supra
In this case the only question involved was whether an order transferring a suit under cl 13 of the Letters Patent satisfied the tests of a judgment as mentioned in cl 15 of the Letters Patent
This Court referring to the Calcutta and Madras decisions refrained from giving any particular decision except that they held that the mere order of transfer under cl 13 of the Letters Patent could not be said to be a judgment and was therefore not appealable
This Court pointed out that the order neither affected the merits of the controversy not did it terminate or dispose of the suit
In this connection the Court observed as follows The judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned
It certainly involves the determination of some right or liability though it may not be necessary that there must be a decision on the merits 
We have indicated that the essential features of a judgment  are according to both the Calcutta and the Madras High Courts and all that we need say is that in our opinion an order under clause 13 of the Letters Patent does not satisfy the tests of a judgment  as formulated by either of these High Courts
Apart from this what is more important is that the Court clearly observed that as an order granting leave under cl 12 of the Letters Patent constitutes the very foundation of the suit hence if by an order such leave is rescinded the suit automatically comes to an end and there can be no doubt that such an order would be a judgment
In this connection this Court observed as follows Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is 248 instituted on its basis
If such leave is rescinded the suit automatically comes to an end and there is no doubt that such an order would be a judgment
Thus from this case an important test that can be spelt out is that where an order which is the foundation of the jurisdiction of the Court or one which goes to the root of the action is passed against a particular party it doubtless amounts to a judgment
As we have already pointed out apart from these observations this Court refused to embark on an enquiry as to in what cases an order passed by a Trial Judge would be a judgment  for purposes of appeal before a larger Bench
Again in Union of India vs Mohindra Supply Co supra this Court clearly held that in enacting section 104 the intention of the Legislature was to preserve the Letters Patent jurisdiction of the High Court and provided for a right to appeal from the Trial Judge to the Division Bench without affecting the provisions of the Code of 1908
In this connection the Court observed as follows  Under the Code as amended the view has consistently been taken that interlocutory judgments ie decisions though not amounting to decrees which affect the merits of the questions between the parties by determining some right or liability passed by single Judges of Chartered High Courts were appealable under the Letters Patent
We might mention here that the observations of this Court completely demolish the arguments of some of the High Courts that section 104 does not apply to internals in the High Court because this Court while referring to the Code made specific reference to section 104 in the previous paragraph
Apart from this there is no observation by this Court regarding essential requisites of a Judgment
In State of UP vs Dr Vijay Anand Maharaj supra the order impugned passed by the Single Judge was an order dismissing an application filed by the applicant to review the order of the Trial Judge
The question for determination was whether the order was a judgment so as to be appealable to the Division Bench
This Court referred to the observations of Hidayatullah J extracted in Manohar V Baliram supra and though they did not expressly approve this decision they indirectly seem to have been impressed by the reasons given by Hidayatullah J Nothing further was said by this Court because it held that on the facts of that case the 249 order of the Trial Judge dismissing the application for review was A appealable
We might mention here that under clause w of order 43 Rule 1 an order granting an application for review is appealable
On a parity of reasoning therefore an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under order 43 Rule 1
In Shankarlal Aggarwal s case supra while indicating the divergence of judicial opinion on the subject this Court held that an order under section 202 of the Indian was a judgment within the meaning of Letters Patent and therefore appealable
We might mention here that the which confers additional original jurisdiction on the Trial Judge expressly makes an order passed by the Trial Judge under section 202 appealable and therefore it is manifest that any order passed under section 202 would have to be appealable under the and therefore it was rightly construed as a judgment
In Radhey Shyam vs Shyam Behari supra the question was whether in an application under order 21 rule 90 to set aside an auction sale an order passed by the Court would be a judgment affecting valuable rights
This Court held that an order in such proceedings affected valuable rights and was therefore appealable
In this connection the Court observed as follows In our view an order in a proceeding under O XXI r 90 is a judgment in as much as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction sale
 Thus the only point which emerges from this decision is that whenever a Trial Judge decides a controversy which affected valuable rights of one of the parties it must be treated to be a judgment within the meaning of the Letters Patent
250 The last case of this Court to which our attention has been drawn is Shanti Kumar R Canji vs The Home Insurance Co Of New York where the court was considering the effect of an order passed by the Trial Judge allowing amendment of the plaint and the question at issue was whether such an order would be a judgment within the meaning of the Letters Patent
The following observations were made by this Court in the aforesaid case
We are in agreement with the view expressed by the High Court at Calcutta in the MB Sirkar s case AIR 1956 Cal 630 as to when an order on an application for amendment can become a judgment within the meaning of clause 15 of the Letters Patent
If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit but it is not decided whether the contentions are right
Such an amendment does nothing more than regulate the procedure applicable to the suit
It does not decide any question which touches the merits of the controversy between the parties
Where on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation it is a judgment within the meaning of clause 15 of the Letters Patent
The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation
It is the final decision as far as the trial court is concerned
In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability
The right or liability is to be found out by the court
The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability
Emphasis ours 251 Thus having noticed the ratio of some of the cases of this Court referred to above regarding the tests to determine the import and meaning of the word judgment  we now proceed to deal with the specific question after interpreting cl15 of the Letters Patent of the Bombay High Court and the corresponding clauses of Letters Patent of other High Courts
We shall endeavour to interpret the connotation and the import of the word judgment  particularly in the light of pertinent and pointed observations made by this Court on earlier occasions as discussed above
The relevant portion of cl 15 of the Letters Patent may be extracted thus  We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras Bombay Fort William in Bengal from the judgment  of one Judge of the said High Court  Clause 15 makes no attempt to define what a judgment is
As Letters Patent is a special law which carves out its own sphere it would not be possible for us to project the definition of the word judgment  appearing in section 2 9 of the Code of 1908 which defines judgment  into the Letters Patent judgment  means the statement given by the Judge of the grounds of a decree or order
In Mt Shahzadi Begam vs Alak Nath and Ors Sulaiman CJ very rightly pointed out that as the Letters Patent were drafted long before even the Code of 1882 was passed the word judgment  used in the Letters Patent cannot be relatable to or confined to the definition of judgment  as contained in the Code of Civil Procedure which came into existence long after the Letters Patent were given
In this connection the Chief Justice observed as follows  It has been held in numerous cases that as the Letters Patent were drafted long before even the earlier Code of 1882 was passed the word judgment  used therein does not 252 mean the judgment as defined in the existing Code of Civil Procedure
At the same time the word judgment  does not include every possible order final preliminary or interlocutory passed by a Judge of the High Court
We find ourselves in complete agreement with the observations made by the Allahabad High Court on this aspect of the matter
The definition of the word judgment  in sub section
9 of section 2 of the Code of 1908 is linked with the definition of decree  which is defined in sub section
2 of section 2 thus decree means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final
It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144 but shall not include a any adjudication from which an appeal lies as an appeal from an order or b any order of dismissal for default
Explanation A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of
It is final when such adjudication completely disposes of the suit
It may be partly preliminary and partly final
Thus under the Code of Civil Procedure a judgment consists of the reasons and grounds for a decree passed by a court
As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy
The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub section
2 of section 2 253 cannot be physically imported into the definition of the word judgment  as used in cl 15 of the Letters Patent because the Letters Patent has advisedly not used the terms order  or decree  anywhere
The intention therefore of the givers of the Letters Patent was that the word judgment  should receive a much wider and more liberal interpretation than the word judgment  used in the Code of Civil Procedure
At the same time it cannot be said that any order passed by a Trial Judge would amount to a judgment otherwise there will be no end to the number of orders which would be appealable under the Letters Patent
It seems to us that the word judgment  has undoubtedly a concept of finality in a broader and not a narrower sense
In other words a judgment can be of three kinds 
1 A Final Judgment a judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided
This would mean that by virtue of the judgment the suit or action brought by the plaintiff is dismissed or decreed in part or in full
Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench 2 A preliminary judgment This kind of a judgment may take two forms a where the Trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable
Here also as the suit is finally decided one way or the other the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench
b Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit eg bar of jurisdiction res Judicata a manifest defect in the suit absence of notice under section 80 and the like and these objections are decided by the Trial Judge 254 against the defendant the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who if his objections are valid is entitled to get the suit dismissed on preliminary grounds
Thus such an R order even though it keeps the suit alive undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must therefore be construed to be a judgment so as to be appealable to larger Bench
3 Intermediary or Interlocutory judgment Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses a to w of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and therefore appealable
There may also be interlocutory orders which are not covered by o 43 R1 but which also possess the characteristics and trappings of finality in that the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding
Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote
For instance where the Trial Judge in a suit under order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff s case on his own evidence without being given a chance to rebut that evidence
As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench
Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is 255 false and succeed in the suit
Thus such an Order passed by the Trial Judge would not amount to a judgment within the meaning of cl 15 of the Letters Patent but will be purely an interlocutory order
Similarly suppose the Trial Judge passes an Order setting aside an exparte decree against the defendant which is not appealable under any of the clauses of O 43 R1 though an order rejecting an application to set aside the decree passed exparte falls within O 43 Rl cl
d and is appealable the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent
The fact however remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour
In these circumstances therefore the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore appealable to a larger Bench
In the course of the trial the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other eg an order refusing an adjournment an order refusing to summon an additional witness or documents an order refusing to condone delay in filing documents after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other
Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge
Thus in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights 256 of the parties and which work serious injustice to the party concerned
Similarly orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment
We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent
Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory
It is manifest that in such cases although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit
Such an order therefore though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent
This is what was held by this Court in Shanti Kumar s case supra as discussed above
Let us take another instance of a similar order which may not amount to a judgment
Suppose the Trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant wh o would have ample opportunity to disprove the amended plea taken by plaintiff at the trial
In such cases the order of the Trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of cl 15 of the Letters Patent The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the Trial Judge is a judgment within the meaning of the Letters Patent
We must however hasten to add that instances given by us are illustrative and not exhaustive
We have already referred to the various tests laid down by the Calcutta Rangoon and Madras High Courts
So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the Trial Judge would be a judgment only if it amounts to a decree 257 under the Code of Civil Procedure is legally erroneous and opposed to the very tenor and spirit of the language of the Letters Patent
We therefore do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer it is manifest that no question of any finality was involved in the order of transfer
We would like to adopt and approve of generally the tests laid down by Sir White CJ in Tuljaram Row s case supra which seems to have been followed by most of the High Courts minus the broader and the wider attributes adumbrated by Sir White CJ Or more explicitly by Krishnaswamy Ayyar J as has been referred to above
Apart from the tests laid down by Sir White CJ the following considerations must prevail with the court 1 That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice
Thus any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or to some extent prejudice one party or the other cannot be treated as a judgment otherwise the appellate court Division Bench will be flooded with appeals from all kinds of orders passed by the Trial Judge
The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice
2 That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings
3 The tests laid down by Sir White CJ as also by Sir Couch CJ as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind
258 Thus these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent
We might however at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments 1 An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant 2 An order rejecting the plaint
3 An order refusing leave to defend the suit in an action under Order 37 Code of Civil Procedure
4 An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent
5 An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation absence of notice under section 80 bar against competency of the suit against the defendant even though the suit is kept alive
6 An order rejecting an application for a judgment on admission under order 12 Rule 6
7 An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure
8 An order varying or amending a decree
9 An order refusing leave to sue in forma pauperis
10 An order granting review
11 An order allowing withdrawal of the suit with liberty to file a fresh one
12 An order holding that the defendants are not agriculturists within the meaning of the special law
13 An order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure
259 14 An order granting or refusing to stay execution of the decree
15 An order deciding payment of court fees against the plaintiff
Here it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant
Thus only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard
We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases
Law with its dynamism pragmatism and vastness is such a large ocean that it is well nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket
We however hope and trust that by and large the controversy raging for about a century on the connotation of the term judgment  would have now been settled and a few cases which may have been left out would undoubtedly be decided by the court concerned in the light of the tests
Observations and principles enunciated by us
In the instant case as the order of the Trial Judge was one refusing appointment of a receiver and grant of an ad interim injunction it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment order 43 Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of cl 15 of the Letters Patent
The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of cl 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision
We therefore hold that the order passed by the Trial Judge in the instant case being a judgment within the meaning of cl 15 of the 260 Letters Patent the appeal before the Division Bench was maintainable and the Division Bench of the High Court was in error in dismissing the appeal without deciding it on merits
We have already directed the High Court to decide the appeal on merits by our formal order dated April 22 1981
Before closing this judgment we may indicate that we have refrained from expressing any opinion on the nature of any order passed by a Trial Judge in any proceeding under article 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which in some High Courts writ petitions are heard by a Division Bench
In other High Court writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preliminary hearing In the circumstances we make no order as to costs
AMARENDRA NATH SEN J
The only question which falls for determination in this appeal by special leave is whether an order passed by a Single Judge on the original side of the Bombay High Court refusing to grant an injunction or to appoint a receiver in an interlocutory application made in the suit is appealable or not  In other words the maintainability of an appeal filed before a Division Bench of the Bombay High Court against an order of a learned single Judge of the High Court dismissing an interlocutory application for injunction and for appointment of a receiver by way of interim relief pending final disposal of the suit in the original side of the High Court forms the subject matter of the present appeal
The question is of some importance as there appears to be no uniformity of the view amongst the various High Courts on the competence and the maintainability of such an appeal
The appellant has filed in the original side of the Bombay High Court a suit for specific performance of an agreement dated 12th January 1979
In the said suit the appellant as plaintiff in the suit took out a notice of motion seeking the following reliefs a that pending the hearing and final disposal of the suit the respondent ie the defendant in the suit be restrained by an order and injunction from in any 261 manner dealing with or disposing of or alienating or A encumbering the right title and interest in respect of the said lands and the said land or any part thereof or parting possession of the said land or any part thereof b that pending the hearing and final disposal of the suit the Court receiver High Court Bombay or some other fit and proper person be appointed receiver of the said lands which forms the subject matter of the agreement with all powers under 040 rule I of the Code of Civil Procedure c ad interims in terms of prayers a b and d for such further and other reliefs as the nature and circumstances of the case may require
A learned single Judge dealing with the said application of the appellant on the original side of the Bombay High Court dismissed the said application
Against the order of the learned single Judge the appellant preferred an appeal to the High Court of Bombay
A preliminarily objection has been raised before the appellate Court as to the maintainability of the appeal on the ground that no appeal lay from the order of the learned Single Judge on the original side of the High Court as the order could not be considered to be a judgment  within the meaning of cl
IS of the Letters Patent and the appeal was incompetent and not maintainable
The appellate Court for reasons recorded in the Judgment upheld the said preliminary objection holding that the order under appeal was not a judgment and no appeal would lie from the said order and the appeal therefore was incompetent and not maintainable
Against the order of the Division Bench of the Bombay High Court the appellant has preferred this appeal by special leave granted by this Court
After the hearing of the appeal was concluded this Court in view of the urgency of the matter passed an order allowing the appeal and remanding the matter to the Bombay High Court for decision of the appeal on merits and this Court observed at the time of the passing of the order that this Court would state reasons later on
The full text of the order has been set out in the judgment of my learned brother Fazal Ali
J 262 I have had the benefit of reading the judgment of my learned brother Fazal Ali J in advance
I concur generally with the views expressed by my learned brother
1 however propose to state my own reasons for the order earlier passed by us
The learned counsel appearing on behalf of the respective parties invited us only to decide the question of appealability of the order under appeal without going into the merits of the case
The learned counsel for the parties have submitted before us that there is a conflict of decisions on the question of appealability of an order of this kind and maintainability of an appeal from such an order and this Court should resolve the conflict and decide the question of appealability of such an order and necessarily the maintainability of the appeal to a Division Bench of the High Court
It has been further submitted before us that in the event of this Court holding that an appeal lay from the order in question and an appeal to the the Division Bench from the order was competent and maintainable this Court should remand the appeal to the High Court for decision on merits and should not in this appeal go into the merits of the case
The learned counsel for the parties in view of the aforesaid submissions made did not advance any arguments on the merits of the case before us
The only question with which we are concerned in this appeal as I have already indicated therefore is whether the order of the learned Single Judge refusing to grant an injunction or to appoint a receiver on the interlocutory application of the appellant is appeal able or not or whether the appeal against the order of the learned Single Judge to the Division Bench of the High Court is competent and maintainable or not
Mr Sorabjee learned counsel appearing on behalf of the appellant has raised two principal contentions
The first contention urged by Mr Sorabjee is that in view of the provisions contained in section 104 of the Code of Civil Procedure read with order 43 thereof the order is appealable under the Code and an appeal from the order becomes clearly maintainable
The other contention raised by Mr Sorabjee is that the order should in any event be considered to be a judgment within the meaning of clause IS of the Letters Patent bearing in mind the provisions contained in section 104 of the Code of Civil Procedure and also order 43 thereof
In support of his first contention Mr Sorabjee has argued that an appeal is a creature of statute and in the absence of any 263 statutory provisions making any other appealable no appeal will A normally lie against any order passed by a single Judge
Mr Sorabjee contends that cl
I S of the Letter Patent makes such provision for an appeal being filed against any order passed by a learned Single Judge on the original side of the High Court
It is the contention of Mr Sorabjee that as Cl 15 of the Letters Patent makes provision for preferring an appeal against an order passed by a learned Single Judge on the original side provided the conditions laid down in the said clause are satisfied Code of Civil Procedure and various other Statutes also make provision regarding appeal from orders passed by a learned Single Judge
Mr Sorabjee has submitted that the Code of Civil Procedure confers substantive rights of preferring appeals against particular orders specified in the Code
In this connection Mr Sorabjee has drawn our attention to section 104 and also order 43 of the Code of Civil Procedure
Mr Sorabjee argues that the Code of Civil Procedure confers a right of appeal on a litigant in respect of the orders which have been made statutorily appealable by the provisions contained in section 104 and order 43 of the Code of Civil Procedure
It is the argument of Mr Sorabjee that the Code of Civil Procedure makes inter alia general provisions with regard to appeals and also specifically confers on the litigant a right in respect of various orders just as various other statutes make special or specific provisions with regard to the right of appeal in respect of any order under the particular statute
Mr Sorabjee has submitted that section 104 of the Civil Procedure Code and order 43 thereof clearly apply to the original side of a High Court
In support of these submissions Mr Sorabjee has drawn our attention to the various provisions of the Code and particularly to Ss 4 98 104 116 to 120 and section 122 and to order 43 rule 1 thereof
Mr Sorabjee in this connection has also relied on the following decisions  1
Mathura Sundari Dass vs Haran Chandra Shall1 2
Lea Badin vs Upendra Mohan Roy Choudhary 2 3
Union of India vs Mohindra Supply Co 3 4
Kumar Gangadhar Bagla vs Kanti Chander Mukherji 4 5
Sonbai vs Ahmedbhai Habibhai 5 264 Mr Sorabjee has criticised the view expressed by the Bombay High Court that section 104 of the Code of Civil Procedure and order 43 thereof do not apply to an order passed by a learned Single Judge on the original side of the High Court and an order passed by a learned Single Judge on the original side can only become appealable if the order can be said to be a judgment  within the meaning of cl 15 of the Letters Patent
Mr Sorabjee comments that cl
IS of the Letters Patent does not in any way seek to control or curb the provisions contained in section 104 and order 43 of the Code of Civil Procedure
He submits that a plain reading of the various sections of the Code of Civil Procedure make it clear that the pro visions contained in section 104 and order 43 of the Code are applicable to the original side of the High Court
It is his submission that the provisions of the Code and the provisions contained in cl 15 of the Letters Patent are not at all in conflict as clause IS of the Letters Patent may make such orders which may not be appealable under the Code still appealable as judgment under cl 15 of the Letters
Patent
In other words it is the submission of Mr Sorabjee that cl
IS of the Letters Patent and the provisions of the Code are indeed supplementary to each other
Mr Sorabjee has fairly submitted that before the Division Bench of the Bombay High Court this argument that the order is appealable under the provisions of the Code and the appeal is there t fore competent was not advanced
It is his submission that this argument was not advanced before the Division Bench of the Bombay High Court as the view of the Bombay High Court has been that the provisions of section 104 and of order 43 of the Code of Civil Procedure do not apply to the original side of the Bombay High Court
Mr Sorabjee has argued that though in this appeal this aspect was not argued before the Division Bench of the Bombay High Court he is entitled to urge this point before this Court as this point is a pure point of law
Mr Sorabjee has next contended that in any event the order under appeal should be considered to be a judgment within the meaning of cl 15 of the Letters Patent
He argues that the word judgment  in clause 15 of the Letters Patent should be construed liberally so as to include within its fold any order which has been made appealable by virtue of the provisions contained in the Code or in any other statute
He submits that such an interpretation will be in conformity with the principles of justice and will truly reflect intention of the Legislature and will avoid any kind of conflict 265 between the provisions contained in cl 15 of the Letters Patent and A the provisions contained in the Code of Civil Procedure and in any other statute
It is his submission that the word judgment  in cl 15 of the Letters Patent may include various other orders which may not otherwise be appealable under the provisions of the Code or any other Statute but may still become appealable as judgment  by virtue of the provisions contained in the Letters Patent
In other words it is the contention of Mr Sorabjee that the expression judgment  in cl 15 of the Letters Patent should be so construed as to include necessarily all orders which are appealable under any statute and also in appropriate cases various other orders which are not expressly made appealable by any statute
He contends that the provisions of the Code contained section 104 and order 43 or in any other statute with regard to the appealability of any order do not have the effect of curtailing or affecting the special jurisdiction and power of the Court of entertaining an appeal from any other order if the Court is satisfied that the order is in effect a judgment within the meaning of cl 15 of the Letters Patent
Mr Sorabjee has submitted that as to the true meaning effect and import of the word judgment  in cl 15 of the Letters Patent there is a divergence of judicial opinion and the word judgment  has come up for consideration before various Courts in many cases
In this connection Mr Sorabjee has referred to the following decisions  1
The Justice of the Peace for Calcutta vs The Orientatal Gas Co Ltd 1 2
TV Tulzaram Row vs MKRV Allagappachettiar 2 3
Ruldu Singh vs Sanwal Singh 3 4
Shah Hari Dial  Sons vs Sohnamal Beliram 4 5
In Re Dayabhai Jiwandas and Ors
vs AMM Muru gappa Chettiar 5 6
Abdul Samad  Ors
vs State of J  K 6 266 7
Standard Glass Beads Factory vs Shri Dhar  Ors1 8
Sri Raja Vallanki Venkata Chinnayamma Rao Bahadur Zimidarni Garu vs Sri Raja Kotagiri Subemma Rao Bahadur Zimidarni Garu 2 9
Chitaranjan Mandal vs Shankar Prosad Sahani 3 10
Manohar Damadar Bhoot vs Baliram Ganpat Bhoot 4 11
Masanta Film Distributors Calcutta vs Sorab Marwanji Modi 5 12
JK Chemicals Ltd vs Kreba and Co6 13
Kedar Nath Mitter vs Denobandhu Shaha7 14
Shorab Merwanji Modi and Anr
vs Mansata Film Distributors and Anr8 15
MB Sarkar and Sons vs Powell and Co9 16
Asrumati Devi vs Kumar Rupendra Deb Rai and Ors10 17
State of UP vs Dr Vijay Anand Maharaj11 18
National Bell Co vs Metal Goods Co P Ltd12 19
Shanti Kumar R Canji vs The Home Insurance Co Of New York13 Mr Sorabjee has submitted that this Court should lay down the guidelines or enumerate the principles to remove the confusion and resolve the conflict in the sphere of judicial determination as 267 to what constitutes judgment  within the meaning of cl 15 of the Letters Patent
Mr Kapadia and Mr Venugopal learned counsel for the Respondents have submitted that the provisions of the Code of Civil Procedure contained in section 104 and order 43 thereof are not applicable to the original side of the Bombay High Court which is a Chartered High Court in view of the provisions contained in cl 15 of the Letters Patent
They have argued that special jurisdiction has been conferred in the matter of preferring an appeal against an order of a Single Judge on the original side of a Chartered High Court by cl 15 of the Letters Patent and this special jurisdiction of the High Court cannot in any way be affected by the provisions of the Code
In support of this contention reference has been made to Ss 3 and 4 of the Code of Civil Procedure and particular reliance has been placed on section 4
They have also strongly relied on the decision of the Bombay High Court in the case of Vaman Raoji Kulkarni vs Nagesh Vishnu Joshi1 and also on the decision of the same High Court in the case of JK Chemicals Ltd vs Kreba and Co supra
They have submitted that these judgments for cogent reasons recorded therein represent correct law and the view expressed by the Bombay High Court to the effect that section 104 and order 43 of the Code of Civil Procedure do not apply to the original side of the Bombay High Court has been consistently followed by the Bombay High Court and should be upheld by this Court
They have also relied on the following observations of the Judicial Committee in the case of Hurrish Chunder Chowdhry vs Kali Sundari Debia2 at p 17 It only remains to observe that their Lordships do not think that sec
588 of Act X Of 1877 which has the effect of restricting certain appeals applies to such a case as this where the appeal is from one of the Judges of the Court to the full Court
 They have argued that if the provisions of the Code are not held to be applicable to the original side of the Bombay High Court then the appeal from the order of the learned Single Judge can only be maintained if the order becomes a judgment  within the meaning 268 of cl 15 of the Letters Patent
They have contended that an order on an interlocutory application refusing to grant an injunction or appoint a receiver cannot be considered to be a judgment within the meaning of cl 1 S of the Letters Patent as such an order virtually does not decide anything and does not in any way affect the merits of the suit
They have also relied on the decisions which were cited by Mr Sorabjee and they have placed particular reliance on the decision of the Bombay High Court in the case of JK Chemicals Ltd vs Kreba and Co supra
Mr Kapadia and Mr Venugopal have both pointed out to us that the question of appealability of the order under the provisions of the Code was not argued before the High Court in the instant case and was sought to be argued for the first time in this Court
Both of them however have fairly stated that the question is one of law and one of of considerable importance and the Court should decide the same
I propose to deal with the question of applicability of the provisions contained in section 104 and order 43 of the Code of Civil Procedure to the original side of the Bombay High Court in the first instance
Before I deal with the contentions urged by the counsel for the respective parties it will be convenient to consider the relevant provisions of the Code
section I of the Code makes it clear that the Act is applicable to whole of India excepting the places mentioned in the said section and the Act therefore applies to Maharashtra
section 3 of the Code provides that for the purpose of this Code the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court
section 4 of the Code reads 1 In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force
2 In particular and without prejudice to the generality of the proposition contained in sub section 1 nothing in this Code shall be deemed to limit or otherwise 269 affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of lent of agricultural land form the produce of such land
 section 5 of the Code deals with the applicability of the provisions of the Code to Revenue Courts
section 100 of the Code deals with appeals from Appellate Decree and section 100 A which has been introduced into the Code wef
121977 by the Amending Act 104 of 1976 provides that notwithstanding anything contained in Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court no further appeal shall lie from the judgment decision or order of such Single Judge in such appeal or from any decree passed in such appeal
The material provisions of section 104 are section 104 1 An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders  x x x x x x x x ff an order under section 35A fa an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92 as the case may be g an order under S 95 h an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the Civil prison of any person except where such arrest or detention is in execution of a decree i any order made under rules from which an appeal is expressly allowed by rules Provided that no appeal shall lie against any order specified 270 in clause i save on the ground that no order or an order for the payment of a less amount ought to have been made
2 No appeal shall lie from any order passed in appeal under this section
 Sections 105 and 106 may also be quoted 1 Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from any error defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal 2 Notwithstanding anything contained in sub section 1 where any party aggrieved by an order of remand from which an appeal lies does not appeal the reform he shall thereafter be precluded from disputing its correctness
section 106 Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made or where such order is made by a court not being a High Court in the exercise of appellate jurisdiction then to the High Court   Special provisions relating to the High Courts not being the court of a Judicial Commissioner are made in para IX of the Code which consists of five sections namely Ss
116 to 120 and the said sections are as follows section 116 This Part applies only to High Courts not being the Court of a Judicial Commissioner
section 117 Save as provided in this Part or in part X or in rules the provisions of this Court shall apply to such High Courts
section 118 Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of 271 the costs incurred in the suit can be ascertained by taxation the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation
section 119 Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction or to examine witnesses except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do or to interfere with the power of the High Court to make rules concerning advocates vakils and attorneyes
section 120 The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction namely secs
16 17 and 20
section 122 empowers the High Courts not being the Court of a Judicial Commissioner to make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence
section 129 further provides Notwithstanding anything in this Code any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing of it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code
The material provisions contain in O XLIII of the Code of Civil Procedure may be set out An appeal shall lie from the following orders under the provisions of section 104 namely x x x x x x x x 272 q an order under rule 2 rule 3 or rule 6 of order XXXVIII r an order under rule 1 rule 2 rule 2A rule 4 or rule 10 of O XXXIX s an order under rule 1 or rule 4 of order XL
x x x x 2
The rules of O XLI shall apply so far as may be to appeals from orders On a proper analysis of the relevant provisions of the Code there cannot be in my opinion any manner of doubt that section 104 and order 43 of the Code of Civil Procedure apply to the original side of the Bombay High Court
It is not in dispute and it cannot be disputed that the Code of Civil Procedure applies to the High Court
section 1 of the Code which provides for territorial extent of the operation of the Code makes this position abundantly clear
The argument is that section 104 and order 43 of the Code do not have any application to the original side of the High Court although various other provisions of the Code may apply to the High Court including its original side
This argument as we have earlier noticed is made mainly on the basis of the provisions contained Ss 3 and 4 of the Code
section 3 of the Code deals with subordination of Courts
It is no doubt true that a learned Single Judge dealing with any matter on the original side discharges his duties as a Judge of the High Court and he can therefore be in no way subordinate to the High Court
When a division Bench of a High Court hears an appeal from any decree order or judgment of any Single Judge of the High Court in its original side there can be no question of any subordination of the Judge presiding over a Bench on the original side of the High Court to the High Court
An appeal admittedly lies to a division Bench of the High Court from any order passed by a learned single Judge on the original side under cl 15 of the Letters Patent if the order is a Judgment  within the meaning of the said clause
An appeal also admittedly lies from a decree passed by a Single Judge on the original side of the High Court to a division Bench of the High Court
A division Bench properly constituted is perfectly competent to hear an appeal from any such order which may constitute a judgment within the meaning of cl 15 and from any decree by a Single Judge on the original side of the 273 High Court
In the same way in case of any other order in respect of which right to prefer any appeal has been conferred by a statute a division Bench of the High Court will be competent to hear such an appeal
S3 of the Code in my opinion has really no bearing on the question and creates no bar to the competence and maintainability of an appeal from an order passed by a Judge on the original side if the order is otherwise appealable
section 4 of the Code has been enacted to preserve any special or local law in force
An analysis of the material part of this section clearly indicates that in the absence of any specific provision to the contrary no provision in the Code shall be deemed to limit or otherwise affect any special or local law in force or special jurisdiction or power conferred or any special form of procedure prescribed by or under any Jaw for the time being in force
The argument that section 104 and order 43 of the Code affect the special jurisdiction or power conferred on the High Court under cl 15 of the Letters Patent is to my mind untenable
15 of the Letters Patent was enacted to provide for an appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction and the said clause undoubtedly confers power for the hearing of an appeal from a judgment of any judge on the original side of the High Court
Though cl 15 makes special provisions in relation to appeal from a judgment of a learned single Judge on the original side yet it cannot be said that the side clause intended to lay down that in no other case an appeal will lie from an order passed by any learned Judge on the original side even if any specific provision is made in any other statute making any other order appealable
An appeal it has to be remembered is a creature of a statute and litigant generally does not have a right of appeal against any decision of a competent Court unless a right of appeal has been specifically conferred on the litigant by law
Cl 15 of the Letters Patent confers on the litigant a right to prefer an appeal against any judgment
Any order which is considered to be a judgment  will be appealable by virtue of the provisions contained in cl 15 of the Letters Patent
In the same way other statutes may confer on the litigant the right to prefer an appeal against an order and by virtue of the provisions of the statute such an order shall become appealable
If any other statute confers on the litigant any right to prefer an appeal in respect of any other order it cannot be said that such a provision creating a right of appeal in any way affects the provisions contained in cl 15 of the Letters Patent
The special power and jurisdiction of the High court under cl 15 to entertain an appeal from any judgment is in no way affected and is fully retained 274 and in addition to the said power a High Court may be competent to entertain other appeals by virtue of specific statutory provisions
section 4 of the Code cannot therefore be said to be in conflict with the provisions contained in cl 15 of the Letters Patent and section 4 of the Code does not limit or otherwise affect the power and jurisdiction of the High Court under cl 15 of the Letters Patent
On the other hand the Code contains specific provisions which go to indicate in which case or to which Court the provisions of the Code may or may not be applicable
section S of the Code makes specific provisions regarding the nature and manner of applicability of the Code to Revenue Courts and the Revenue Court has also been defined in the said section
On the other hand in Ss 116 to 120 it is convincingly indicated that section 104 and order 43 of the Code of Civil Procedure apply to the original side of a High Court
Ss 116 to 120 are contained in part IX of the Code which makes special provisions relating to High Courts not being the Court of Judicial Commissioner
section 117 specifically provides that the provisions of the Code shall apply to High Court save as provided in part IX or in part X section 120 contained in part IX lays down that the provisions contained in Ss 16 17 and 20 of the Code shall not apply to the High Court in the exercise of its original civil jurisdiction
Part X which deals with rules and manner of framing thereof does not have any material bearing on the question of applicability of section 104 and order 43 of the Code to the original side of the High Court
The effect of the special provisions contained in part IX relating to High Courts therefore clearly appears to be that the provisions of the Code have as provided in Part IX or Part X or in rules apply to the original side of the High Court and Ss 1617 and 20 of the Code do not apply to the High Court in the exercise of its original civil jurisdiction
section 104 of the Code is contained in part VII which deals with appeals
Part VII of the Code dealing with appeals consists of the sections commencing from Ss 96 to 112
This part VII dealing with appeals makes provisions for an appeal from original decrees appeals appellate decrees appeals from orders general provisions relating to appeals and also appeals to the Supreme Court
section 104 of the Code provides for appeals from orders and clearly stipulates that an appeal shall lie from the orders mentioned therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other order
Order 43 which is attracted by section 104 of the Code clearly provides that an appeal shall lie from the orders mentioned in rule 1 of o 43 under the provisions of section 104 and the orders referred to therein particularly in q r and s clearly 275 indicate that the order in question is an appealable order
As I have earlier observed that an appeal is a creature of a statute and the right to appeal is only enjoyed if law confers any right
The Code of Civil Procedure clearly makes the order in question an appealable one
The legislature has thought it fit to confer a right on the litigant to prefer an appeal in respect of the orders mentioned in section 104 of the Code read with order 43 thereof
A Court will be slow to deprive a litigant of the statutory right merely on the ground that the order in question has been passed by a learned Judge on the original side of the High Court
It may further be pointed out that section 104 which makes the order under appeal and also various other orders referred to therein appealable under the Code recognises that apart from the order made appealable under the Code there may be other orders appealable by any law for the time being in force and further provides that no appeal will lie from any orders other than the orders expressly provided in the body of the Code or by any other law in force
The right of appeal against a judgment of a learned single Judge on the original side under cl 15 of the Letters Patent is a right conferred by any other law in force
It may be pertinent to point out in this connection that by incorporating section 100A in the Code by the Amending Act 104 of 1976 section 38 the Legislature has thought it fit to interfere with the right of appeal in certain cases even if such right had been conferred by Letters Patent or any other law
This right of appeal under cl 15 of the Letters Patent is in no way curtailed or affected by section 104 of the Code of Civil Procedure and section 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein
In other words by virtue of the provisions contained in section 1041 a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein even though such orders may or may not be appealable under cl 15 of the Letters Patent as a judgment and the right of appeal under cl
15 of the Letters Patent remains clearly unimpaired
In this connection the following observations of this Court in the case of Union of India vs Mohindra Supply Co supra at p 511 may be usefully quoted The intention of the legislature in enacting the sub s1 of section 104 is clear the right to appeal conferred by any other law for the time being in force is expressly preserved This intention is emphasised by section 4 which provides that in the absence of any specific provision to the contrary 276 nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force
The right to appeal against judgments which did not amount to decrees under the Letters Patent was therefore not affected by section 1041 of the Code of Civil Procedure 1908
It will be apt in this connection to bear in mind the view expressed by the Privy Council in the case of Mt Savitri Thakurain vs Savi and Anr1 the Judicial Committee held at p 82 83 as follows The orders and rules under the Code are by Section 121 given the same affect as if they had been enacted in the Code and therefore order 41 Rule 10 is one of the pro visions of the Code
It applies to appeals in the High Court including the present appeal unless any particular section of the Act can be found to exclude it
Section 1041 is the section relied on for this purpose It prescribes what orders shall be appealable and enumerates them and among the orders enumerated there is not included such an order as that made by Choudhary J Out of the operation of Section 104 there are however expressly excepted matters which are otherwise expressly provided for in the body of the Code
In order to appreciate the full effect of section 104 it should be compared with the corresponding section of the Act of 1882 Section 588
The earlier section enacted that appeals should lie in certain cases which it enumerated and from no other such orders  This raised this question nearly whether an appeal expressly given by Section 15 of the Letters Patent and not expressly referred to in Section 588 of the Code of 1882 could be taken away by the general words of the section 581 and in the wording of section 104 of the Act of 1908 is significant for it runs and same as otherwise expressly provided by any law for the time being in force from the other orders 
Section 15 of the Letters Patent is such a law and what it expressly provides namely an appeal to the High Court s appellate jurisdiction from a decree of the High 277 Court in its original ordinary jurisdiction is thereby saved
Thus regulations duly made by orders and Rules under the Code of Civil Procedure 1908 are applicable to the jurisdiction exercisable under the Letters Patent except that they do not restrict the express Letters Patent appeal
 The effect of sub section 1 section 104 therefore is clearly not to affect any existing special or local law or any special jurisdiction or power conferred and to preserve any existing right of appeal whether under any statute or the Letters Patent and to create a further right of preferring an appeal in respect of the orders enumerated therein
C In the case of Mathura Sundari Dassi vs Haran Chandra Shaha and Ors
supra Sanderson CJ Observed at p 362 as follows I would be very loth to hold that this order is not a judgment  within the meaning of cl 15 of the Letters Patent but it is not necessary in my judgment to give a definite opinion upon it because I think on the second point the Code does give a right of appeal
By clause 14 of the Letters Patent it is provided as follows And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor General in Council exercised at meetings for the purpose of making law and regulations 
By the terms of section 117 the code is made applicable to the High Court and o 43
R 1 gives a right of appeal in the very case under discussion
But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court
I cannot follow that argument
It is part of the defendant s case that O9 R 8 applies
That order is in effect a part of the Civil Procedure Code
It seems to me strange that the plaintiff should be subjected to O9 R 8 and be liable to have his suit dismissed for want of appearance yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which when his application for reinstatement has been refused gives him a right of appeal against that refusal he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code
I think this 278 is not a true view or a reasonable construction to put upon the Code and the Rules made under it
In my judgment the Code and the rules do apply and the plaintiff has a right of appeal
 Sri Aushotosh Mookherji in his judgment in the same case at pp
364 365 held as follows The question consequently arises whether O43 r 1 clause c is applicable to an order under o IX r 9 made by a Judge on the original side of this Court
On behalf of the appellant reliance has been placed upon section 117 of the Code which lays down that save as provided in this part or in part X or in rules the High Court established under the Indian High Courts Act 1961  The only provision in Part IX which may have any possible hearing is that contained in section 120 which obviously does not touch the present question
The provision in Part X which deal with the matter is contained in section 129 this also does not militate against the contention of the appellant
The term rule  which finds a place in section 117 is defined in clause 18 of section 2 of the Code to mean a rule contained in the first Schedule or made under section 122 or section 125 
Our attention has not been drawn to any such rule which makes o 43 R 1 Clause e inapplicable
On the other hand O49 R 3 which excludes the operation of other rules lends support to the contention of the appellant that o 43 r 1 cl
c is applicable to the present appeal
But it has been argued on behalf of the respondents on the authority of the decision of the Judicial Committee in Hurriah Chandra Choudhary vs Kali Sudari Dasi that the Civil Procedure Code in so far as it provides for appeals does not apply to an appeal preferred from a decision of one Judge of a High Court to the Full Court
The true effect of the decision of the Judicial Committee was considered by this Court in Toolses Money Dassesv
Sudevi Dasses 1890 25 Cal 361 but it is not necessary for my present purpose to determine its hearing in all its implications because in my opinion the law has been substantially altered since that decision was pronounced
section 104 279 Of the Code of 1908 is materially different from section 588 of Code of 1882
It provides that an appeal shall lie from the orders mentioned in the first clause of that section and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders 
The effect of section 104 is thus not to take away a right of appeal given by clause IS of the Letters Patent but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable
I may here observe perethically that in the case of Tooles Money Dasses vs Sudevi Dasses
Princep J felt pressed by the argument that if an appeal was deemed to have been allowed by the Code of Civil Procedure there was no provision for the Constitution of a Court to which such an award might be preferred
section 106 of the Code however lays down that where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made  Consequently where a right of appeal has been so given it would be the duty of this Court to constitute a Court of Appeal under section 13 of the Indian High Courts Act
1 hold accordingly that this appeal is competent under cl
tc R 1 o 43 of the Civil Procedure Code
 In the case of Lea Badin vs Upendra Mohan Roy Chaudhry supra a Division Bench of the Calcutta High Court held at p 37 as follows But there is another and far simpler ground on which it must he held that an appeal is competent
The order in the present case is one for which a right of appeal ii provided in cl
R 1 o 43 of the Code
Under the pre sent Code Act 5 of 1908 it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court such a contention was elaborately dealt with and repelled in the case of On a plain reading of the various provisions of the Code and on a proper construction thereof I have no hesitation in holding that section 104 of the Code of Civil Procedure applies to the original side of the High Court and the order in question is clearly appealable by virtue of the provisions contained in section 1041 read with order 280 43 thereof
The authorities to which I have referred also lend support to the view that I have taken
A contrary view expressed by any High Court must necessarily be considered to be wrong and incorrect
The leading decision of the Bombay High Court in the case of Baman Rao Kulkarini vs Naresh Vishnu Joshi supra proceeds on an incorrect appreciation and interpretation of the provisions of the Code
As I have earlier discussed there is no question of section 104 of the Code of Civil Procedure purporting to control of cl 15 of the Letters Patent
It may on the other hand be said that section 104 of the Code seeks to supplement cl 15 of the Letters Patent by conferring a right of appeal in the case of various orders mentioned in sub section 1 of section 104 which brings in its purview section 43 of the Code
The further approach of the Bombay High Court in that case as to subordination of a judge of the High Court sitting singly on the original side is fallacious and untenable
An appeal under cl 15 of the Letters Patent from a judge sitting singly on the original side of the High Court becomes competent to a division Bench and a learned judge against whose judgment the appeal is preferred does not become subordinate to the High Court
There is in fact no question of subordination at all
The observations of the Judicial Committee in the case of Hurish Chandra Choudhary vs Kali Sudari Dasi supra at p 17 relied on by the learned counsel for the Respondents are of no material assistance to them
I have already quoted the said observations of the Judicial Committee
The said observations made in relation to the provisions of section 588 of the Act 10 of 1877 only go to lay down that the said section which has the affect of restricting certain appeals does not have the affect of restricting the right of appeal under cl 15 of the Letters Patent and does not apply to a case where an appeal is one under cl 15 of the Letters Patent
It may further be noted that the law has since the said decision been substantially altered and section 104 of the Code of Civil Procedure of 1908 is materially different from section 588 of the Code of 1882
This decision of the Judicial Committee has already come up for consideration by a division Bench of the Calcutta High Court in the Mathura Sudari Dassi vs Haran Chandra Shaha supra
I therefore accept the first contention of Mr Sorabjee that the order in question is appealable under section 104 1 of the Code read with order 43 thereof and the said provisions of the Code apply to the original side of the Bombay High Court and the appeal preferred 281 from the order of the learned single judge to the Division Bench of A the Bombay High Court was competent and maintainable
In view of my accepting the first contention of Mr Sorabjee it does not really become necessary for me to consider the other contention raised by him namely that the order in question is also appealable as a judgment  under cl 15 of the Letters Patent
As elaborate arguments have been advanced on this aspect and various decisions have been cited my learned brother Fazal Ali J has in his judgment also considered this aspect and has dealt with various cases in deference to the submissions made from the bar that this Court should lay down guidelines as to what will constitute a judgment  within the meaning of cl
l S of the Letters Patent
An order which is appealable under the Code or under any other statute becomes appealable as the statute confers a right on the litigant to prefer an appeal against such an order
Such an order may or may not be appealable as judgment  under cl 15 of the Letters Patent
An order which may be appealable under cl
IS of the Letters Patent as a judgment  becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as judgment 
An order appealable under the Letters Patent may or may not be appealable under the Code
A right of appeal is a creature of Statute
A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law
Certain orders become appealable under the Code as the Code makes such orders appealable
Other Statutes may confer a right of appeal in respect of any order under the Statute
The Letters Patent by cl 15 also confers a right to prefer an appeal against a judgment 
An order which satisfies the requirements of judgment  within the meaning of cl
15 becomes appealable under the Letters Patent
What kind of an order will constitute a judgment  within the meaning of cl 15 of the Letters Patent and will become appealable as such much necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed
The question whether a particular order constitutes a judgment within the meaning of cl 15 of the Letters Patent to be appealable under the provisions thereof has come up for consideration before the various Courts in a number of decision
Very many decisions have been cited in the present case and they have been considered by my learned brother Fazal Ali J in his judgment
The question indeed is not free from difficulties and divergent views have been expressed by different Courts and by various learned 282 Judges
This Court had also the occasion to consider as to what may constitute a judgment within the meaning of cl 15 of the Letters Patent in certain cases
In the case of Shanti Kumar R Canji vs The Home Insurance Co Of New York Supra this Court referring to the earlier decision of this Court in the case of Asrumati Debi vs Kumar Rupendra Deb Rajkot  ors supra observed at p 550 This Court in Asrumati Debi s case said that a judgment within the meaning of cl 15 of the Letters Patent would have to satisfy two tests
First the judgment must be the final pronouncement which puts an end to the proceedings as far as the Court dealing with it is concerned
Second the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on merits
This Court further observed at p 555 The view of the High Courts of Calcutta and Madras with regard to the meaning of judgment  are with respect preferred to the meaning of judgment  given by the Rangoon and Nagpur High Court
 This Court also held at p 556 In finding out whether the order is a judgment  within the meaning of cl
IS of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability
The right or liability has to be found out by a Court
The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability
 In my opinion an exhaustive or a comprehensive definition of judgment  as contemplated in ch IS of the Letters Patent cannot be properly given and it will be wise to remember that in the Letters Patent itself there is no definition of the word judgment 
The expression has necessarily to be construed and interpreted in each particular case
It is however safe to say that if any order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereof or the same affects the question of Court s jurisdiction or the question of limitation such an order will normally constitute judgment  within the meaning of cl
IS of the Letters Patent
I must not however be understood to say that any other kind of order may not become judgment within the meaning of cl
IS of the Letters Patent to be appealable under the provisions thereof
As already stated it is not necessary to decide in the present case whether the order in question would be appealable under cl
IS of the Letters Patent as judgment and I therefore refrain from expressing any opinion on this question


Summary:
In a suit for specific performance of an agreement to sell filed on the original side of the Bombay High Court the plaintiff appellant prayed for certain interim reliefs
A single Judge of the High Court dismissed the application
A Division Bench of the High Court on appeal by the plaintiff held that the appeal was not maintainable on the ground that the impugned order of the single Judge was not a judgment  within the meaning of clause 15 of the Letters Patent of the High Court
In appeal to this Court it was contended on behalf of the appellant that since the trial Judge is governed by the procedure prescribed by the Code of Civil Procedure by virtue of the provisions of section 104 read with Order 43 Rule 1 the impugned order is appealable to a larger Bench 2 assuming that the Letters Patent was a special law section 104 read with Order 43 is in no way inconsistent with clause 15 of the Letters Patent 3 even if section 104 read with Order 43 Rule 1 does not apply an order refusing to appoint a receiver or to grant injunction has the attributes of finality and therefore amounts to a judgment  within the meaning of Letters Patent
Allowing the appeal  HELD per Fazal Ali and A Varadarajan JJ Amarendra Nath Sen J concurring Since the Order of the trial Judge was one refusing appointment of a receiver and grant of ad interim injunction it is a judgment  within the meaning of the Letters Patent both because order 43 rule 1 applies to internal appeals in the High Court and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent
Hence an appeal is maintainable to the Division Bench
The Division Bench was in error in dismissing the appeal without deciding it on merits
259 F G 188 There is no inconsistency between section 104 read with Order 43 Rule 1 CPC and appeals under Letters Patent
There is nothing to show that Letters Patent in any way excludes or overrides the application of section 104 read with Order 43 Rule 1 or that these provisions do not apply to internal appeals within the High Court
237 E F Code of Civil Procedure 1877 by sections 588 and 589 did not make any distinction between appeals to the High Court from the District Court and internal appeals to the High Court under Letters Patent
Notwithstanding the clear enunciation of law by the Privy Council that section 588 did not affect nor was it inconsistent with the provisions of Letters Patent and that therefore orders of a trial Judge which fall beyond section 588 could be appealable to a larger bench under the Letters Patent if its orders amounted to a judgment  within the meaning of clause 15 of the Letters Patent there was a serious controversy among the High Courts on this question
Section 104 of the CPC 1908 made it clear that appeals against orders mentioned in Order 43 Rule 1 were not in any way inconsistent with the Letters Patent but merely provide additional remedy by allowing appeals against miscellaneous orders passed by the trial Judge to a larger bench
205 E G In dealing with a suit the trial Judge has to follow the procedure prescribed by the Code
It is indisputable that any final judgment passed by the trial Judge amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger bench
Letters Patent itself does not define the term judgment  and has advisedly not used the word decree  in respect of a judgment given by the trial Judge
206 B D Section 5 of the Code empowers the State Government to apply the provisions of the Code where any enactment is silent as to its applicability
Section 5 makes clear that excepting the Revenue Courts all other Civil Courts would normally be governed by the provisions of the Code in the matter of procedure206H207A Section 4 of the Code which provides that in the absence of any specific provision to the contrary the provisions of the Code do not limit or affect any special or local law is not applicable in the instant case because even if the Letters Patent is deemed to be a special law within the meaning of this section the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent
207 B C By force of section 104 all appeals as indicated in the various clauses of Order 43 Rule 1 would lie to the appellate court
In short a combined reading of the various provisions of the Code leads to the conclusion that section 104 read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of the High Court
207 H 209 B In the instant case therefore section 104 read with Order 43 Rule 1 does not in any way abridge or interfere with or curb the powers conferred on the trial Judge by clause 15 of Letters Patent
They only give an additional remedy by way of appeal from the orders of the trial Judge to a larger bench
That being so there is no force in the respondent s argument that these provisions do not apply to internal appeals in the High Court
209 D E 189 Hurrish Chunder Chowdry vs Kali Sundari Debia 10 IA 4 Mt Sabitri Thakurain vs Savi  Anr
AIR 1921 PC 80 Union of India vs Mohindra Supply Co  and Shankarlal Aggarwal  Ors
vs Shankarlal Poddar  Ors  referred to
A number of enactments as for example section 202 of the and section 39 of the Arbitration Act widen rather than limit the original jurisdiction of the High Court by conferring additional or supplementary remedy by way of appeal to a Division Bench from the judgment of a single Judge
On a parity of reasoning therefore section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under the various clauses of Order 43 Rule 1 to a larger bench of the High Court without disturbing interfering with or over riding the Letters Patent jurisdiction
211 B C Dayabhai Jiwandas  Ors
vs AMM Murugappa Chettiar ILR 13 Rangoon 457 Sonbai vs Ahmedbhai Habibhai 1872 9 Bom
HC Reports
398 Rajagopal  Ors
in Re LPA 8 of Mad 447 Ruldu Singh vs Sanwal Singh Lahore 188 Lea Badin vs Upendra Mohan Roy Chaudhary  Ors  Mathura Sundari Dassi vs Haran Chandra Shaha  Ors
AIR 1916 Cal
361 Abdul Samad  Ors
vs The State of J  K AIR 1969 JK 52 and Kumar Gangadhar Bagla vs Kanti Chunder Mukerjee  Anr  approved
Ram Sarup vs Kaniz Ummehani ILR 1937 All
386 over ruled
Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals the principles governing these provisions would apply by process of analogy
The provisions of Order 43 Rule 1 possess the traits trappings and qualities and characteristics of a final order
Although the word judgment  has not been defined in the Letters Patent but whatever test may be applied the order passed by the trial Judge appealed against must have the traits and trappings of finality
The appealable orders indicated in the various clauses of Order 43 Rule 1 are matters of moment deciding valuable rights of the parties and are in the nature of final orders so as to fall within the definition of judgment 
237G 225 E F Radhey Shyam vs Shyam Behari Singh  referred to
Pandy Walad Dagadu Mahar  Anr
vs Jamnadas Chotumal Marwadi  Vaman Ravi Kulkarni vs Nagesh Vishnu Joshi  Ors AIR 1940 Bom 216 Vishnu Pratap  Ors
vs Smt
Revati Devi  Ors
AIR 1953 All
647 Madhukar Trimbaklal vs Shri Sati Godawari Upasani Maharaj of Sakori  Ors  Ratanlal Jankidas Agarwal vs Gajadhar  Ors AIR 1949 Nagpur 188 Beads Factory  Anr
vs Shri Dhar  Ors
AIR 1960 All 692 J K Chemicals Ltd vs Kreba  Co AIR 1967 Bom
56 overruled
Having regard to the nature of the orders contemplated in the various clauses of Order 43 Rule 1 which purport to decide valuable rights of the parties in the ancillary proceedings even though the suit is kept alive these orders possess the attributes or characteristics of finality so as to be judgments within the meaning of clause 15 of the Letters Patent
They are therefore appealable to a larger 190 bench
The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position
237H 238A B The question to be decided in this case which is a vexed and controversial one is as to what is the real concept and purport of the word judgment  used in the Letters Patent
The meaning of the word judgment  has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and over which despite the length of time no unanimity had been reached and it is high time that this controversy should be settled once and for all as far as possible
238 E F Out of the numerous authorities cited three leading judgments have spelt out certain tests for determining as to when an order passed by a trial Judge can be said to be a judgment  within the meaning of clause 15 of the Letters Patent and we are inclined to agree generally with the tests laid down in these cases though some of the tests laid down are far too wide and may not be correct
238 G H While the view taken in the Justices of the Peace for Calcutta vs The Oriental Gas Company VIII Bengal LR 433 is much too strict the one taken in T V Tuljaram Row vs MKRV Alagappa Chettiar ILR 35 Madras 1 is much too wide
The correct test seems to lie somewhere in between the tests laid down in these cases
Similarly the full Bench decision in Manohar Damodar Bhoot vs Baliram Ganpat Bhoot AIR 1952 Nagpur 357 pithily described the essential requisites and the exact meaning of the word judgment  as used in the Letters Patent
The pointed observations made in this case try to synthesize the conflicting views taken by the Calcutta and Madras High Courts
They represent the true scope and import of the word judgment  as used in the Letters Patent
The Court reviewed the entire case law on the subject laying down various tests to determine what a judgment is The test for determining as to when an order passed by a trial Judge can be said to be a judgment  within the meaning of the Letters Patent are 1 Where an order which is the foundation of the jurisdiction of the Court or one which goes to the root of the action is passed against a particular party it amounts to a judgment
248 B C Asrumati Debi vs Kumar Rupendra Deb Raikot  2 An order dismissing an application for review would be appealable under the Letters Patent being a judgment though it is not made appealable under Order 43 rule 1
249 B State of Uttar Pradesh vs Dr Vijay Anand Maharaj  3 The which confers original jurisdiction on the trial Judge expressly makes an order passed by the trial Judge under section 202 appealable and therefore any order passed under that section would be appealable under the and is therefore a judgment
249 C D 191 Shankarlal Aggarwal vs Shankerlal Poddar 4 Whenever a trial Judge decides a controversy which effects valuable rights of one of the parties it is a judgment within the meaning of the Letters Patent
249 H Radhey Shyam vs Shyam Behari Singh  5 Where an order passed by the trial Judge allowing amendment of the plaint takes away from the defendant the defence of immunity from any liability by reason of limitation it is a judgment within the meaning of clause 15 of the Letters Patent
250 A B Shanti Kumar R Canji vs The Home Insurance Co of New York  6 Clause 15 of the Letters Patent does not define the term judgment 
The Letters Patent is a special law which carves out its own sphere and it would not be possible to project the definition of the word judgment  as defined in the Code of Civil Procedure
Letters Patent were drafted long before the Code of Civil Procedure of 1882 was enacted
The word judgment  used in the Letters Patent does not mean a judgment  as defined in the Code
At the same time it does not include every possible order final preliminary or interlocutory passed by a Judge of the High Court
251 D E Mt Shahzadi Begum vs Alak Nath  Ors
AIR 1935 All 628
Under the Code of Civil Procedure a judgment consists of reasons and grounds for a decree passed by a Court
As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy
The concept of a judgment as defined in the Code seems to be rather narrow and the limitations engrafted by section 22 cannot be physically imported into the definition of the word judgment  as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms order  or decree  anywhere
The intention of the givers of the Letters Patent was that the word judgment  should receive a much wider and more liberal interpretation than the word judgment  used in the Code of Civil Procedure
At the same time it cannot be said that any order passed by a trial Judge would amount to a judgment otherwise there will be no end to the number of orders which would be appealable under the Letters Patent
The word judgment  has a concept of finality in a broader and not a narrower sense
2 52 G H 253 A C A judgment can be of three kinds 1 A final judgment A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided is a final judgment
This would mean that by virtue of the judgment the suit or action brought by the plaintiff is dismissed or decreed in part or in full
Such an order passed by the trial Judge is a judgment within the 192 meaning of the Letters Patent and amounts to a decree so that an appeal would lie from such a judgment to a Division Bench
254 D E 2 A preliminary judgment A preliminary judgment may be of two forms i where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable
Since the suit is finally decided one way or the other the order passed by the trial judge would be a judgment  finally deciding the cause so far as the trial Judge is concerned and therefore appealable to a larger bench ii where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to the maintainability of the suit as for example bar of jurisdiction res judicata a manifest defect in the suit absence of notice under section 80 and the like
An order of the trial Judge rejecting these objections adversely affects a valuable right of the defendant who if his objections were held to be valid is entitled to get the suit dismissed on preliminary grounds
Such an order though it keeps the suit alive decides an important aspect of the trial which affects a vital right of the defendant and must therefore be construed to be a judgment so as to be appealable to a larger bench
254 F H 255 A B 3 Intermediary or Interlocutory judgment Most of the interlocutory orders which contain the quality of finality are clearly specified in clause a to w of Order 43 Rule 1
They are judgments within the meaning of the Letters Patent and therefore appealable
There may also be interlocutory orders not covered by Order 43 Rule 1 but possessing the characteristics and trappings of finality because they adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding
Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote
Thus when an order vitally affects a valuable right of the defendant it will be a judgment within the meaning of Letters Patent so as to be appealable to a larger bench
255 C E 256 A Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned
256 H 257 A The following considerations should prevail with the Court in deciding whether or not an order is a judgment 1 The trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice
Thus any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or to some extent prejudice one party or the other cannot be treated as a judgment258D E 2 An interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the question in controversy in ancillary proceeding or in the suit itself or in a part of the proceedings
258 G 193 It is not the form of adjudication which has to be seen but its actual effects on the suit or proceedings
243 H If irrespective of the form of the suit or proceeding the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment
244A If the effect of the order if not complied with is to terminate the proceedings the said order would amount to a judgment
244 B An order in an independent proceeding which is ancillary to the suit not being a step towards judgment but is designed to render the judgment effectively can also be termed as judgment within the meaning of the Letters Patent
244C An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings
244 D E An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit so far as that particular adjudication is concerned would amount to a judgment within the meaning of the Letters Patent
244 E F Some illustrations of interlocutory orders which may be treated as judgments may be stated thus 1 An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant
258 B C 2 An order rejecting the plaint
258 C 3 An order refusing leave to defend the suit in an action under Order 37 Code of Civil Procedure
258 C 4 An order rescinding leave to the trial Judge granted by him under clause 12 of the Letters Patent
258 D 5 An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation absence of notice under section 80 bar against competency of the suit against the defendant even though the suit is kept alive
258 D E 6 An order rejecting an application for a judgment on admission under Order 12 Rule 6
258 E F 7 An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure
258 F 8 An order varying or amending a decree
258 F G 9 An order refusing leave to sue in forma pauperis
258 F G 10 An order granting review
258 F G 194 11 An order allowing withdrawal of the suit with liberty to file a fresh one
258 G H 12 An order holding that the defendants are not agriculturists within the meaning of the special law
258 G H 13 An order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure
258 H 14 An order granting or refusing to stay execution of the decree
259A 15 An order deciding payment of court fee against the plaintiff
259 B per Amarendra Nath Sen J concurring On a plain reading and proper construction of the various provisions of the Code of Civil Procedure section 104 of the Code applies to the original side of the High Court of Bombay and the impugned order of the single Judge is appealable to a Division Bench under this section read with Order 43 thereof
279 H 280 A The right of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104
By virtue of the provisions of section 1041 a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein even though such orders may or may not be appealable under clause 15 of the Letters Patent as a judgment and the right of appeal under clause 15 remains clearly unimpaired
275 E G The argument of the respondent based mainly on the provisions of sections 3 and 4 of the Code of Civil Procedure that even if various other provisions of the Code apply to the Bombay High Court including its original side the provisions of section 104 read with Order 43 could not apply to the original side of a Chartered High Court because the jurisdiction conferred by clause 15 of the Letters Patent is a special jurisdiction is without force
267 B C That by virtue of section 1 which provides for territorial extent of the operation of the Code the Civil Procedure Code applies to the State of Maharashtra cannot be disputed
268 E F Section 3 which deals with subordination of Courts to the High Court has no bearing on the point in issue and does not create any bar to the competence and maintainability of an appeal from an order passed by a single Judge on the original side if the order is otherwise appealable
While dealing with any matter on the original side of the High Court a single Judge is in no way subordinate to the High Court
Nor again could there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment
If any order passed by him on the original side is a judgment  within the meaning of clause 15 of the Letters Patent an appeal lies to a Division Bench
272 E G Similarly there is no force in the argument that since section 104 and Order 43 of the Code affect the special jurisdiction conferred on the High Court under 195 clause 15 of Letters Patent these provisions are not applicable to the present case
273 C D Section 4 of the Code cannot be said to be in conflict with the provisions of clause 15 nor can it be said that it limits or otherwise affects the power and jurisdiction of the High Court under clause 15
274 A B Section 4 provides that nothing in the Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction conferred by or under any law for the time being in force
Clause 15 confers on the litigant a right to prefer an appeal from the court of original jurisdiction to the High Court in its appellate jurisdiction
It confers a right of appeal from a judgment of any Judge on the original side to the High Court
Though this clause is a special provision it cannot be said that it is intended to lay down that no appeal would lie from an order of a single Judge on the original side even if specific provision is made in any statute making the order appealable
By virtue of this provision any order considered to be a judgment would be appealable
If a statute confers on the litigant right of appeal it cannot be said that such provision would affect the special provisions of clause 15
This special power is in no way affected and is fully retained
In addition the High Court may be competent to entertain other appeals by virtue of specific statutory provisions
273 C H 274 A On the contrary the Code contains specific provisions indicating cases in which its provisions are or are not applicable as for example section 5 which makes specific provision regarding the nature and manner of applicability of the Code to revenue courts
Sections 116 to 120 clearly indicate that section 104 and order 43 apply to the original side of the High Court
Section 104 and Order 43 which is attracted by section 104 clearly provide that an appeal shall lie from the orders mentioned in rule 1 of Order 43
The impugned order is one such order and is clearly appealable
When the legislature conferred such a right on the litigant a Court would be slow to deprive him of the statutory right merely on the ground that the order had been passed by a single Judge on the original side of the High Court
274 B E Section 104 recognises that apart from the orders made appealable under the Code there may be other orders appealable by any law for the time being in force
It further provides that no appeal will lie from any orders other than orders expressly provided in the Code or by any other law in force
The right of appeal against a judgment of a single Judge on the original side under clause 15 is a right conferred by any other law in force
275 C E Union of India vs Mohindra Supply Co  and Mt Savitri Thakurain vs Savi and Anr
referred to
Mathura Sundari Dassi vs Haran Chandra Shaha AIR and Lea Badin vs Upendra Mohan Roy Choudhary AIR 1935 Cal
35 approved
Vaman Raoji Kulkarni vs Nagesh Vishnu Joshi AIR overruled
Hurrish Chander Chowdhry vs Kali Sundari Debia 10 IA 4 held in applicable
196 Unless a right is conferred on him by law a litigant does not have an inherent right of appeal
An order appealable under the CPC or any other statute becomes appealable because the concerned statute confers a right of appeal on the litigant
But yet such an order may or may not be appealable as judgment  under clause 15 of the Letters Patent
An order appealable under clause 15 as a judgment  becomes appealable because the Letters Patent confers the right of appeal against such order as judgment 
Similarly an order appealable under the Letters Patent may or may not be appealable under the Code
281 C E The Letters Patent by clause 15 confers a right of appeal against a judgment  and therefore an order which satisfies the requirements of judgment  within the meaning of clause 15 becomes appealable
What kind of order will constitute a judgment  within the meaning of this clause and become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed
281 F G A comprehensive definition of judgment  contemplated by clause 15 cannot properly be given
Letters Patent itself does not define judgment 
The expression has necessarily to be construed and interpreted in each case
But yet it is safe to say that if an order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereto or the same affects the question of the Court s jurisdiction or the question of limitation it normally constitutes judgment  within the meaning of clause 15 of Letters Patent
282 E G