Holding

Section 104 of the Code of Civil Procedure, 1908 read with Order 43 Rule 1 applies to internal High Court appeals, making the order refusing a receiver and injunction a judgment within the meaning of Clause 15, and therefore the appeal to the Division Bench is maintainable.

Summary

In a suit for specific performance filed in the original side of the Bombay High Court, the plaintiff sought the appointment of a receiver and an interim injunction. The single Judge dismissed the application, and the plaintiff appealed to a Division Bench, which held the appeal was not maintainable because the order was not a "judgment" under Clause 15 of the Letters Patent. The Supreme Court examined whether Section 104 of the Code of Civil Procedure, 1908 read with Order 43 Rule 1, applies to internal appeals in a High Court and whether the order refusing a receiver and injunction possesses the attributes of a judgment. The Court held that the CPC provisions do apply to the trial Judge of the High Court, that the impugned order is a judgment within the meaning of Clause 15, and that there is no inconsistency between the CPC and the Letters Patent. Consequently, the appeal to the Division Bench was maintainable. The Supreme Court allowed the appeal and remanded the matter for determination on its merits.

Issues considered

The applicability of Section 104 CPC read with Order 43 Rule 1 to appeals from a single Judge of a High Court (internal appeals).
Whether an order refusing appointment of a receiver and an injunction constitutes a "judgment" under Clause 15 of the Letters Patent.
Whether Section 104 CPC and Order 43 Rule 1 are inconsistent with the special jurisdiction conferred by the Letters Patent.

Legislation cited

Arbitration Acts. 39
Code of Civil Procedure, 1877s. 588, s. 589, s. 591
Code of Civil Procedure, 1908s. 1, s. 100, s. 102, s. 103, s. 104, s. 105, s. 106, s. 117, s. 3, s. 4, s. 5, s. 96, s. 98, s. 99
Companies Act, 1956s. 202

Subjects

Letters PatentSection 104 CPCOrder 43 Rule 1Judgment definitionInternal appealHigh Court jurisdictionSpecific performanceReceiver appointmentInterim injunctionCivil Procedure

Judgment

A
187

SHAH BABULAL fKHIMJI
v.
JAYABEN D. KANIA AND ANR. B

-•
August JO, 1981

[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND
AMARENDRA NATH SEN, JJ]

Code of Civil Procedure, 1908-Section 104 Order 43 Rule I-Scope of-
c
• Letters Patent-Clause 15-Right of Appeal under chruse 15--Jf affected by sec·
lion 104,'_0rder 43 Rule 1.

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 D
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 'juGgment' within the meaning of clause 15 of the Letters
Patent of the High Court.

In appeal to this Court it was contended on be:half of the appellant that
since the trial Judge is governed by the procedure prescribed by the Code of E
Civil Procedure, by virtue of the provisions of section 104 read with Order 43
Rule (I) the impugned order is appealable to a larger Bench; (2) assuming that
the Letters Patent was a special law, section 104 re~ad 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 l 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.
F
Allowing the appeal

HELD:

(per Fazal Ali and A. Varadarajan, JJ.)

(Amarendra Nath Sen, J. concurring.) G
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 '3 rule 1 applies to internal appeals in
the High Court, and such an order even on merits contains the quality of fina-
lity and would be a judgment within the meaning of clause 15 of Letters Patent. H
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 SUPREME COURT REPORTS [1982] I S.C.R,

A There is no inconsistency between section 104 read with Order 43 Rule l,
C.P.C. 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
B 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 falt 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
c controversy among the High Courts on this question. Section 104 of the C.P.C.,
1908 made it clear that appeals against orders mentioned in Order 43 Rule l •
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
D 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. [205 B·D]

Section 5 of the Code empowers the State Govrnment to apply the provisions
of the Code where any enactment is silent as to its applicability. Section 5 makes
E clear that, excepting the Revenue Courts, all other Civil Courts would normally
be governed by the provisions of th~ Coje in the matter of procedure.[206H 1207Al

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

F
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
G read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of
the High Court, (207 H; 209 Bl

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
H 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 imernal appeals in the High Court. [209 D-E]
BABULAL V. JAYABEN 189
Hurrish Chunder Chowdry v. Kali Sundari Debia, 10 I.A. 4, Mt. Sabitri A
Thakurain v. Savi & Anr. A.I.R. 1921 P.C. 80, Union of India v. Mohindra Supply
Co., [1962] 3 S.C.R. 497 and Shankarlal Aggarwal & Ors. v. Shankar/al Poddar &
Ors. [1964] 1 S.C.R. 71, referred to.

A number of enactments, as for example, :;ection 202 of the Companies
Act, 1956 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
B
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 with-
out disturbing, interfcrring with or over-riding the Letters Patent jurisdiction.
[211 B-C]

Dayabhai Jiwandas & Ors. v. A.M.M. Afurugappa Chettiar, I.L.R. 13
c
Rangoon 457, Sonbai v. Ahmedbhai Habibhai [11172] 9 Born. HC Reports. 398,
Rajagopal & Ors. (in Re. LPA 8 of 1886) !LR 9 Mad. 447, Ru/du Singh v. Sanwal
Singh [1922] !LR 3 Lahore 188, Lea Badin v. Upendra Mohan Roy Chaudhary &
Ors. [1934-35] 39 CWN 155, Mathura Sundari Dassi v. Haran Chandra Shaha &
Ors. A.LR. 1916 Cal. 361 Abdul Samad & Ors. v. The State of J & K. A.I.R.
1969 J&K 52, and Kumar Ga11gadhar Bag/av. Karui Chunder Mukerjee & Anr., 40
CWN 1264, approved. D

Ram Sarup v. Kaniz Ummehani, ILR 1937 Al.I. 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 tinal order. Although the word 'judgment' has not been E
-- defined in the Letters Patent but whatever test 1nay be applied the order pass~d
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'. [2370; 225 E-F]

Radhey Shyam v. Shyam Behari Singh [1971] l S.C.R. 7g3 referred to. F
• Pandy Walad Dagadu Mahar & Anr. v. Jamnadas Chotuma/ Marwadi,
A.I.R. 1923 Born. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi & Ors,
-1-
A.I.R. 1940 Born. 216; Vishnu Pratap & Ors. v. Smt. Revati Devi & Ors. A.1.R.
1953 All. 647; Madhukar Trimbak/al v. Shri Sari Godawari Uparani Maharaj of
Sakori & Ors. A.LR. 1940 Nagpur 39; Ratan/al Jankidas Agarwal v. Gajadhar &
Ors.; A l.R. 1949 Nagpur 188; Beads Factory&: Anr. v. Shri Dhar & Ors. A.LR. G
1960 All. 692; J. K. Chemicals Ltd. v. Kreba &. Co.; A.LR. 1967 Born. 56, over-
ruled.

Having regard to the nature of the orders contemplated in the various clau-
ses of Order 43" Rule 1 \\'·hich purport to decide valuable rights of the parties in the
ancilliary proceedings even though the suit is kept alive these orders possess the H
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 SUPREME COURT REPORTS [1982) ! S.C.R.

A 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-BJ

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
B 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
c 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 v. The Orien-
ta/ Gas Company (VIII Bengal L.R. 433) is much too strict, the one taken in
T. V. Tu/jaram Row v. M.K .R. V. A/agappa Chefliar (ILR 35 Madras 1) is much
D 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 v.
Baliram Ganpat Bhoot (AIR 1952 Nagp~r 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 conflict-
ing 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.
E
[The Court reviewed the entire case law on the subject laying down
various tests to determine \.vhat 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 :

F (I) 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 v. Kumar Rupendra Deb Raikot [1953] SCR 1159

(2) An order dismissing an application for review would be appealable
G under the Letters Patent being a judgment, though it is not made appealable
under Order 43 rule I. [249 BJ

State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1"963] 1 SCR 1.

(J) The Companies Act, 1956 which confers original jurisdiction on the
H 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 appea-
1able under the Companies Act and is, therefore 1 a judgment. [249 C-DJ
BABULAL V. JAYABEN 191

Shankarlal Aggarwal v. Shanker/al Poddar (1964] l SCR 711 A
(4) Whenever a trial Judge decides a controversy which effects valuable
rights of.one of the parties it is a judgment within the 1neaning of the Letters
Patent. [249 H]

Radhey Shyam v. Shyam Behari Singh [1971] l SCR 783.
B
(5) Where an order passed by the trial Judge a11owing 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-BJ

l Shanti Kumar R. Canji v. The Home Insurance Co. of New York [1975] 1
SCR 550. c
(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 tht~ Code. At the same time it D
does not include every possible order-final, prelirr1inary or interlocutory passed
by a Judge of the High Court. (251 D-E] ·

Mt. Shahzadi Begum v. Alak Nath & Ors. A.I.R. 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 E
for the decree, it follows as a matter of course that the judgment must be a for·
mal 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 2(2) 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. F
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 judg-
ment; otherwise there will be no end to the numbe:r 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 <1-H; 253 A-C] G
A judgment can be of three kinds :

(1) A final judgment: A judgment, which dc~cides 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 judment. This would mean that by virtue of the judg- H
ment, the suit or action brought by the plaintiff is di:;missed or decreed in part
or in full. Such an order passed by the trial Judge is a judgment within 1he
192 SUPREME COURT REPORTS (1982] I S.C.R.

A meaning of the Letters Patent and amounts to a deceee 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 : en 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,
8 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
I
like. An order of the trial Judge rejecting these objections adversely affects a
c 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-BJ

(3) Intermediary or Interlocutory judgment: Most of the interlocutory
D 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 n1eaning 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 ancilhiry proceeding. Before such an order
can be a judgment the adverse effect on the party concerned must be direct and
E 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
F 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 pa"s discretio.
G nary 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.l258D·E]

(2) An interlocutory order, in order to be a judgment, must contain the
H traits and trappings of finality either when the order decides the question in
controversy in ancilliary proceeding or in the suit itself or in a part of the procee-
dings. [258 G]
BABULAL V. JAYABEN 193

It is not the form of adjudication which has to be seen but its actual effects A
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 amonnts to a judgment. (244A]

If the effect of the order, if not complied with, is to terminate the proceed-
ings, the said order would amount to a judgment. (244 BJ 8
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 Joes not determine any rights in question raised in the suit or
proceedings. i244 D-E]

An adjudication based on a refusal to exercise discretion, the effect of which
c
is to dispose of the suit, so far as that particular adjudication is con:cerned,
would amount to a judgment within the meaning of the Letters Patent. [244 E-F]

Son1e illustrations of interlocutory orders which n1ay be treated as judgments
may be stated thus : D
(I) 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 ac·crued to the defendant.
[258 B-C]

(2) An order rejecting the plaint. [258 CJ E
•
(3) An order refusing leave to defend the suit in an action under Order
37, Code of Civil Procedure. [25l> C]

(4) An ordrr rescinding leave to tne 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
F
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]
G
(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 paup.eris. [258 F·G] H
(IO) An order granting review. [258 F-G]

•• 1.
194 SUPREME COURT REPORTS [1982] I S.C.R.

A (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 Jaw. [258 G-H]

(13) An order staying or refusing to stay a suit under section 10 of the Code
8 of Civil Procedure. [258 HJ

(14) An order granting or refusing to stay execution of the decree. [259A]

(15) An order deciding payment of court fee against the platntiff. (259 B]

c
(per Amarendra Nath Sen J concurring)

On a plain reading and proper con..,truction 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 in1pugned order of the single Judge is
appealable to a Division Bench under this section read with Order 43 thereof.
(279 H; 280 A]

D The rjght 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 104(1) a liti-
gant enjoys the right of preferring an appeal in respect of various orders mentio-
ned therein, even though such orders may or may not be appealable under clause
lS of the Letters Patent as a judgment and the right of appeal under clause 15
remains clearly unin1paired. [275 E-G]

E The argument of the respondent, based mainly on the provisions of sec-
tions 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 lhe 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]

F That by virtue of section 1 (which provides for territorial extent of the ope-
ration 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
G 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 subordi-
nate to the Division Bench which hears an appeal from his judgment. If any
order passed by him on the origina 1 side is a 'judgment' within the meaning of
clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G]
H
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
BABULAL V. JAYABEN 195

clause 15 of Letters Patent these provisions are not applicable to the present A
case. (273 C-DJ

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 con· B
ferred by or under any Jaw 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. II confers a right of appeal
from a judgment of any Judge on the original side to the lligh 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 appea-
lable. If a statute confers on the li 1 igant right of appt~al, it cannot be said that
c
such provision would affect tbe 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]
D
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
make(specific provision regarding the nature and manner of applicability of the
Code to revenue courts. Sections 116 to 120 clearly inJicate 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 itnpugned order is one such E
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 ordt~rs made appealable under
the Code, there may be other orders appealable by any law for the time being in F
force. It further provides that no appeal will lie from any orders other than
orders expressly provided in the Code or by any other Jaw in force. The right of
appeal against a judgment of a single Judge on the original side under clause I 5
is a right conferred by "any other Jaw in force". [275 C-E]

Union of India v. Mahindra Supply Co. [1962) 3 SCR 497 and Mt. Savitrl
Thakurain v. Savi and Anr. [1921] P.C. 80 referred to.
G
Mathura Sundari Dassi v. Haran Chandra Shaha, A.l.R. 1916 Cal. 361 and
Lea Badin v. Upendra Mohan Roy Choudhary, A.I.R. 1935 Cal. 35 approved.

Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi, A.I.R. 1940 Born. 216 over-
ruled.
H
Hurrish Chander Chowdhry v. Kali Sundari Debia, JO I.A. 4, held in appli-
cable.
196 SUPREME COURT REPORTS (1982] ] S.C.R

A Unless a right is conferred on him by Jaw, a litigant does not have an in-
herent right of appeal. An order appeable under the C.P.C. 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 tnay 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
B 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
c and character of the order passed. (281 F·G]

A comprehensive d-'finition of 'judgment' contemplated by clause 15 cannot
properly be given. Letters Patent itself does not define 'judgn1ent'. The expres·
sion 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
0 the question of the Court's jurisdiction or the question of limitation, it nonnally
constitutes 'judgment' within the meaning of clause 15 of Letters Patent.
[282 E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6~2 of
1981
E Appeal by special leave from the judgment and order dated
the 15th January, 1981 of the Bombay High Court in Letters Patent
Appeal No. 611of1980.

Safi J. Sorabji G. L. Sanghi, P. H. Parekh, P. K. Slzrojj and
Gautam PhiFps for the Appellant.
F -
R.P. Khambata, B.R. Agarwala, K.P. Khambata, Ashok
C. Mehta and Miss Halida Khatun for Respondent No. 1.

K.K. Venugopal, R. Vaidya, M.B. Rele, Rajiv K. Garg and -..r-
N.D. Garg for Respondent No. 2.
G
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
H
against the Order of the Trial Judge was dismissed on the ground
that the appeal was not maintainable as the Order impugned was
BA.BU LAL v. JAY ABEN (Pazal Ali, J.) 197

not a judgment within the meaning of clause 15 of the Letters Patent A
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.
B
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, s1!t aside the judgment
- dated January 15, 1981 of the Division Bench of the
Bombay High Court and remand the case to the same and
c
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 D
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 E
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-
F
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 appoint-
ment of receiver as also for interim injunction. Thereafter, the
plaintiff-appellant filed an appeal before the Bombay High Court G
which dismissed the appeal as being non-maintainable on the gruund
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.
H
The substantial questions of law raised in this appeal by the
Counsel for the parties are as to the scopt:, ambit and meaning of
198 SUPREME COURT REPORTS (1982] J S.C.R.

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 signifi-
cance of the word 'judgment' assumes a special importance in those
High Courts which have ordinary civil jurisdiction depending on valu-
ation of the suit or the action. These High Courts are Calcutta,
B 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 Companies Act.

It seems to us that the interpretation of the word 'judgment'
c appea ing in the letters Patent of the High Court l1as 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 1he High Courts regarding the true scope, ambi t
D 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
E 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/or • _.>
Calcutta v. The Orhntal Gos Company (3) where Sir Richard Couch,
C.J. 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, C.J.
F with some modifications and clarifications. The Madras High Court
has taken a very liberal view in its decision in T. V. Tuljaram Row
v. M .K. R.V. Alagappa Chettior. (2) The Bombay High Court seems
to have consistently taken the view that no interloclitory 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
G exercising original civil jurisdiction (hereinaf!er referred to as 'Trial
Judge' ) to a larger Bench. The Rangoon High Court speaking
through Sir Page, CJ. in In Re Dayabhai Jiwandas & Ors v. A.M.M.
Murugappa Chet!iar (3) has placed a very narrow ,nterpretation on

H (J) Vlll Bengal L.R. 433.
(2) ILR 35 Madras l.
(3) ILR 13 Rangoon 457.
BABULAL v. JAYABEN (Fazal Ali, J.) 199

the term 'judgment' and has almost equated it with a decree passed A
by a civil court.

This Court also bas 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 B
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. Jn this connection, in
Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. (1) this Court
observed as follows :- c
"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 di:Oerent
views mentioned above purport to be based and attempt to
determine with as much definiteness as possible the true mean- D
ing and scope of th<~ word 'judg1nent' as it occurs in clause 15
of the Letters Patent of the Calcutta High Court and in the
corresponding clauses of the Letters P'.-J«J,1 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 E
the character which we have before us, be regarded as a
'judgment' within the meaning of clause 15 of the Letters
Patent".

(Emphasis supplied)
F
Similarly, in the case of State of Uttar Pradesh v. 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 G
cleavage of opinion on that question.

tll [1953] SCR 1159.
H
(2) [1963] 1 SCR l.
200 SUPREME COURT REPORTS [1982] I s.C.11..

A The foregoing brief analysis of judgment shows that
the definition given by the Madra• 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
B 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 definitirn of its own and refrained
C 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 Shankar/a/ Aggarwal & Or•. v.
D 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
E Patent .................. ... We consieder that that occasion bas
not arisen before us either since in view of the construction
which we have adopted of s. 202 of the Indian Companies
Act the scope of the expression 'judgment' in the Letters
Patent does not call for examination or final decision".

F (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
G 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
H shades, features and aspects of the interpretation of the word 'judg-

(1) [t964] 1 S.C.R. 717.
BABULAL v. JAYABEN (Fazal Ali, J.) 201

ment' appearing in the Letters Patent, the serious legal controversy A
raging in this country for over a century between the various High
Courts resulting in an irreconcilrable element of judicial uncertainty
in the interpretation of the law and.ifurther 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 8
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 c
question at issue :

( l) It was contended that the provisions of s. I 04 read with
Order 43 Rule 1 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'Code of 1908') does not D
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 Ord,,. 43 Rule 1 of the
Code of 1908 and is therefore appelable to a larger E
Bench.

In amplificationiof this contention it was submitted
that the Trial Judge is governed by the procedure
prescribed by the Code of 1908 in all matters and
F
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 I
read with s. 104.

.
-·\.
(2) Even if we assume that the Letters Patent was a
G
special law which overrides the provisions of the Code
of Civil Procedure, the power under s. I 04 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
H
Patent.
202 SUPREME COURT REPORTS [1982) l S.C.R.

A (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 !he conclusion that such orders
amount to judgments of the Single Judge as contem-
plated by the Letters Patent.
B
(4) Even ifs. 104 read with Order 43 Rule l 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
c 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 :

D (1) S. 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 bys. 104 is the same as that for appeals
E
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
F
forum contemplated by s. 104 at all but is created by
the Letters Patent.

(3) Ifs. 104 of the Code of 1908 is held to be applicable
to proceedings befo, e the Trial Judge of the High Court
G certain strange anomalies will arise, viz., where an
appeal lies from a district court under Order 43 Rule
I before a Single Judge, a further appeal will have to
lie before a larger Bench against the order of the
Trial Judge although s. 104 prevents a second appeal
H against miscellaneous Orders under Order 43 Rule l
and permits only one appeal. This will, therefore, lead
to an inconsistent and anomalous position.
BABULAL v. JAYABEN (Fazal Ali, J.) 203

(4) The word 'judgment' should be strictly construed as A
was done by Sir Richard Couch, C.J. 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 contreversy of the issues in
dispute.
B
We would first deal with the point relating to the applicability
of s. 104 read with Order 43 Rule I 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 c
support the propositions adumbrated by Mr. Sorabjee .
•
Jn order, however, to appreciate the applicability of s. 104 read
with Order 43 Rule I, 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 s. 104 by the Code of 1908. It D
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 pend ency of the suit or proceedings. In the
Civil Procedure Code of 1877 the section corresponding to Order 43
Rule I of the Code of 1908 was s. 588 which provided for appealahle E
orders under clauses (a) to (t). Section 588 of the Code of 1877
provided that an appeal from any order specified in s. 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 ss. 588 and 589 of the Code
of 1877 [would clearly show that the statute made no distinction
F

-\. 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 s. 588 no further appeal could lie from any order passed by any G
court in exercise of its original or appellate jurisdiction. Section 59 l
may be extracted thus :-

"591. No other appeal from orders; but error therein
may be set forth in memorandum of appeal against H
decree.
204 SUPREME COURT REPORTS [1982] 1 S.C.R.

A ''Except as provided in this chapter, no appeal shall
lie from any order pas,ed 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
snch order, affecting the decision of the case, may be set
forth as a ground of objection in the memorandum of
B 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
c in ss. 588 and 59 J.
•
The Code of 1877 was later on replaced by the Code of I 882
but the provisions remained the same. In view of the rather vague
and uncertain nature of the provisions of ss. 588 to 591 a serious
D controversy arose between the various High Courts regarding the
interpretation of c. 588. The Bombay and Madras High Courts
held that under cl. 15 of the Letters Patent of the said High Courts,
an !lppeal could lie only from orders passed under s. 588 and not
even under the Letters Patent. In Sonba'i v. Ahmedbha'i Habibha'i(')
a Full Bench of the Bombay. High Court held that under cl. 15 of the
E Letters Patent an appeal .to the High Court from an interlocu·
tory prder mad<; 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 ss. 588 and 591 of the Code of 1877. The

-
Mac;lr!IS High Court in Rajgop1/ & Ors (in Re: L.P.A. No. 8 of
188/j)(') took the s.ame view. Then came the decision of the Privy
F Council in the· case of Hurrish Chunder Chowdry v. Kali Sundari
Debia(') wb,ich while considering s. 588 made the following observa-
tions:-

"It only remains to observe that their Lordships do -1-
•
not think thats. 588 of Act X of 1877, which has the effect
G of restricting certain appeals is from one of the Judges of the
Court to the full Court."

(Emphasis ours)

H (I) [1872) 9 Born. H.C. Reports 398.
(2) !LR 9 Mad, 447.
(3) 10 I.A. 4.
BABULAL v. JAYABEN (Faza/ Ali, J.) 205

This judgment gave rise to a serious conflict of opinions in the High A
Courts in India. The High Courts 0£..Calcutta, Bombay and Madras
held that in view of the decision of the Privy Council in the afore-
said case, even though an order may not have been appea!able
under s. 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 v. Sudevi Dassee,(') Secretary B
of State v. Jehangir;( 2 ) Chappan v. Modin Kutti,( 3) However, the
Allahabad High Court in Banno Bibi v. Mehdi Husain(') held that if
an order was not appealable under ss. 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 v. lhsan-u/- G
Lah Khan,( 5 )

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 s. 588,
the Judicial Committee in Hurrish Chunder Chowdry's case (supra) D
had made it clear that appeals would lie under s. 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 s. 588
would not lie to a larger Bench of the High Court. In other words,
the Privy Council intended to lay down clearly that s. 588 did not
affect nor was it inconsistent with the provisions or'the Letters Patent E
and hence those orders of the Trial Judge which fell beyound s. 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 undoub-
tedly correct. At any rate, since a fresh controversy had arisen, the F
legislature stepped in to settle the controversy by enacting the new
s. l 04 in the Code of 1908. Section 104 made it clear that appeals
against orders mentioned in Order 43 Rule I were not i.n any way
-·
, inconsistent with the Letters Patent and merely provided an addi-
tional remedy by allowing' appeals against miscellaneous orders
passed by the Trial Judge to a ·larger' Bench. In other words, the G
legislature gave full statutory effect to the views of the Calcutta,

(!) ILR [1899] 26 Cal. 363.
(2) [1902] 4 Born. 342.
(3) !LR [1899] 22 Mad. 68, H
(4) ILR f1889] All. 375.
(5) !LR [i892] 14 All. 226.
• 206 SUPREME COURT REPORTS [1982) I S.C.R •

A Bombay and Madras High Courts. Even after the introduction of r.
s. 104, the conflict between the various High Courts still continued as
to whether or not s. 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
B 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
judgilient. 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
c 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 doeE not define the term 'judgment' and has
advisedly not used the word 'decree' in respect of any judgment that
•
...
D 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 pro-
E visions 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
F apply to them with such modifications as the State
Government may prescribe.

(2) "Revenue Court" in sub-section (I) means a court ,._
having jurisdiction under any local law to entertain •
suits of other proceedings relating to the rent, revenue
G or profits of land used for agricultural purposes, but
does not include a Civil Court having original jurisdic-
tion under this Code to try such suits or proceedings
as being suits or proceedings of a civil nature."

H The importance of this section is that wherever the provisions
of the Code of Civil Procedure are sought to be excluded by any
special enanctment which may be silent on the point, the State
BABULAL v. JAYABEN (Pazal Ali, J.) 207

Government can by notification apply the provisions of the Code to A
Revenue courts. A bare perusal of this st:ction 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 4(1) 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 B
or affect any special or local law. Thns, the test contained in s. 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
s. 4, the provisions of s. 104 do not seek to limit or affect the;provi-
sions of the Letters Patent.
c
This now takes us to s. 104 of the Code of 1908, the relevant
portion of which may be extracted thus :-

"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,
D
from no other orders :-

(a) to (f) annulled;

(ff) an order under section 3.S·A;
E
(g) an order under section 95;

(h) an order under any of the prov1S1ons of this Code
imposing a fine or directing the arrest or detention in
the civil prison of any person except \\'here such arrest
or detention is in execution of a decree; F

(1) any order made under rules from which an appeal
is expressly allowed by rules :
.\.

G
(2) No appeal shall lie from any order passed in
appeal under this section."

Thus by the force of s. 104 all appeals as indicated in the various
clauses of Orj]er 43 Rule 1 viz. (a) to (w) would lie to the appellate
court. Section 105 clearly provides that no appeal shall liejfrom H
any order of a Court made in the exercise of its original or appellate
208 SUPREME COURT REPORTS (1982] I S.C.R,

A jurisdiction except according to the procedure laid down by the
Code. The relevant part of s. 105 (!) may be extracted thus: r
"105. (I) 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
8 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
C in clauses (I) 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.
D
(3) The following rules shall not apply to any Chartered
High Court in the exercise of its ordinary or extraordin-
ary original civil jurisdiction, namely :-

(I) rule IO and rule II, clauses (b) & (c), of Order VII;
E
(2) rule 3 of Order X;

(3) rule 2 of Order XVI;

(4) rules 5, 6, 8, 9, IO, II, 13, 14, 15, and 16 (so far as
F relates to the manner of taking evidence) of Order
XVIII;

(5) rules l to 8 of Order XX; and

(6) rule 7 of Order XXXIII (so far as relates to the
G 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".
H
It may be pertinent to note that although a number of rules
have been exempted from the operation of the Code, Order 43 Rule
BABULAL v. 1AYABBN (Fazal Ali, J.) 209
A
1 and the clauses thereunder have not been mentioned in any of
these clauses.

Tbus, a combined reading of the various prov1s10ns of the
Code of Civil Procedure referred to above lead to the irresistible
conclusion that s. 104 read with Order 43 Rule I clearly applies to B
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 thats. 117 of the Code of 1908
expressly applies the provisions of the Code to High Courts also. C
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".
D
We find ourselves in complete agreement with the arguments
of Mr. Sorabjee that in the instant cases, 104 read with Order 43
Rule I 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 s. 104 read with Order 43 Rule I does is merely to give an
additional remedy by way of an appeal from the orders of the Trial E
Judge to a larger Bench. Indeed, if this is the position then the
contention of the respondent that s. 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 F
Civil Procedure merely provides for a forum and if Order 43 Rule I
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 I by a Trial Judge, such an appeal G
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 I cannot apply to internal appeals in th•: 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
H
Code of 1877 an identical provision like Order 43 Rule J also
existed in the shape of s. 588 which was absolutely in the same terms
210 SUPREME COURT REPORTS (1982] I s.c.R.

A as Order 43 Rule I 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 s. 588 (now
Order 43 Rule I) was considered as early as 1882 in Hurrish Chunder
Chowdary' s case (supra) where the Privy Council in very categorical
terms observed thus :-
B
"It only remains to observe that their Lordships do not
think thats. 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."
c
We have already shown that a perusal of these observations
leaves no room for doubt that the Privy Council clearly held that
s. 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
D 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
s. 588 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
E Council. So far as the applicability of s. 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
v. Savi & Anr., (1) their Lordships observed as follows :

"Section 15 of the Letters Patent is such a law and
F 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 jurisdic-
G t10n 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
H Order 43 Rule I applies to the original proceedings before the Trial

(!) AIR (1921) P.C. 80.
BABULAL v. JAYABEN (Fazal Ali, J.) 211

Judge. Ju Union of India v. Mohindra Supply Co., (1) this Court A
made the following observatious :-

"The intention of the legislature in enacting sub-s. (1)
of s. 104 is clear: the right to appeal conferred by any
other law for the time being in force h: expressly preserved.
This intention is emphasised by s. 4 which provides that in B
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 a.ffected by s. 104 (1) c
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
s. 104 (I) of the Code of 1908 and the decision therefore fully
supports the argument of Mr. Sorabjee that there is no inconsistency D
between the Letters Patent jurisdiction and s. 104 read with Order
43 Rule I of the Code of 1908. Similarly, in Shankarlal Aggarwal' s
case (supra) this Court while construing the provisions of s. 202 of
the Indian Companies Act observed as follows : -

"There was no doubt either that moHt of the orders or E
decisions in winding up would not be comprehended within
the class of appealable orders specified [in s. 104 or 0. 43
r.l. [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 s. 104 and 0. 43 r.J. and very few of the
F
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
G
rules as to appealability".

There is yet another aspect of the matter which shows that
s. 104 merely provides an additonal or supplemental remedy by way
H
(I) [1962] 3 SCR 497.
212 SUPREME COURT REPORTS [1982] 1 s.c.R,

A 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 s. 202 of the
Companies Act 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
B held that against the order passed by a Trial Judge under the
Companies Act, an appeal would lie to the Divison Bench. On a
parity of reasoning, therefore, s. l 04 read with Order 43 Rule 1

-
expressly authorises and creates a forum for appeal against orders
falling under various clauses of Order 43 Rule l, to a larger Bench
of the High Court without at all disturbing, interfering with or
c 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
.
,.A
suit the matter is referred to arbitation and after the award is filed
by the Arbitrator certain objections are taken, under s. 39 of the
D 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
E no others) to the Court lauthorised by law to hear appeals
from original decree of the Court passing the orders;
An Order-

(i) superseding an arbitration;

F (ii) on an award stated in the form of a special case;
•
(iii) Modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

G (v) staying or refusing to stay legal proceedings where
there is an arbitration agreement;

(vi) setting aside or refusing to set aside an award :

H Provided that the provisions of this section shall
not apply to any order passed by a small Cause Court.
BABULAL v. 1AYABEN (Fazal Ali, J.) 213

(2) No second appeal shall lie from an order passed in A
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 B
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 I
c
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 D
would be applicable. In this connection, Sargent, Acting C.J.,
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 E
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. 15 of the
Letters Patent, and holding the word 'judgment' to mean F
all judgments and orders which are appealable under the
• provisions of the Civil Procedure Code".
--1.
•
This case was followed by a Division Bench of the Madras High
Court which clearly held that an order passed nnder s. 592 was
G
controlled by s. 588. We have already pointed out that in the Code
prior to 1882, Order 43 Rule I appeared in the shape of s. 588 and
even under Order 43 Rule I an order rejecting an appeal in forma
pauperis is not appealable and does not appear in any of the clauses
of Order 43 Rule I. The Madras High Court in Rajgopa/' s case
(supra), relying on the decision of the Bombay Higb. Court, observed
H
thus:
214 SUPREME COURT REPORTS (1982] I S.C.R.

A "An Order passed under s. 592 of the Code of Civil
Procedure rejecting an appeal in forma pauperis is not
appealable under s. 588, which provides that no appeal
shall lie from orders not specified in that section.

It has already been decided in Achaya v. Ratnavelu
B (ILR 9 Mad. 253) that s. 15 of the Letters Patent is con-
trolled 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".

C Thus, even in the earlier times the High Court had veered
round to the view that s. 588 would be applicable to the High
-
Courts also even in respect of internal appeals in 1 the High
Court.

Similarly, in Ru/du Singh v. Sanwal Singh, (1) Shadi Lal,
D C.J. Speaking for the court observed thus ; -

Now, section 588 of the old Code, which has now
been replaced by section 104 and Order XLlll, rule!
of the new Code, enacted that an appeal lay from the
orders specified in that section and from no other orders";
E and it was consequently decided by a Full Bench of that _;
Court in Muhammad Naim-u/-Lah Khan v. lhsan Ullah Khan
(1892) ILR 14 All. 226 that clause JO 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
F 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 (l) of
G section 104, and that sub-section (2J 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
H Court further held that s. 104 does not in any way take away the
(1) (1922] !LR 3 Lahore 188.
BABULAL v. JAYABEN (Faza/ Ali, J.) 215

right of appeal.conferred by the Letters but Patent of the High A
>) Court merely bars a second appeal from orders passed under
0.43 R. 1 to Division Bench. A contrary view was taken by the
Allahabad High Court in Ram Sarup v. Kaniz Ummehani(') where
the following observations were made : -

"It may, however, be conceded that this saving clause B
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 v. Kalisunduri Debi (1882) ILR
- 9 Cal. 482 observed that section 588, which had the effect
of restricting certain appeals, did not apply to a case where
c
the appeal is from one of the Judges of the High Court
to the full Court to the full Court .. In any case sec-
tion 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 D
clause I 0 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 E
legal position. It is true that s. 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 per-
missible. In the first place, once s. 104 applies and there is nothing
F
in the Letters Patent to restrict the application of s. 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 G
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 passess an
order, an appeal against the judgment of the said Trial Judge would
H
(I) !LR 1937 All. 386,
216 SUPREME COURT REPORTS [1982 ] l S.C.R.

A lie to a Division Bench. Furthermore, there is an express provi-
sion 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 s. I 00 of the Code of Civil Procedure. Such
a further appeal would lie to a Division Bench only with the leave
8 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
c of the said High Court or one Judge of any Division Court,
pursuant to section I 08 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
D
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 juris-
diction by a Court subject to the superintendence of the
said High Court where the Judge who who passed the
E judgment declares that the case is a fit one for appeal."

A perusal of the Letters Patent would clearly reveal two
essential incidents-(!) 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 judg-
F ment 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 I applies, then
G 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. ,..
H 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-
BABULAL v. JAYABEN (Faza/ Ali, J.) 217

fortunately! however, the Allahabad High Court in Ram Sarup' s A
case (supra) refused to follow a Division Bench decision in Piari Lal
v. 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 s. I 04 is a distinction with-
out any difference. Sir John Edge, C.J., 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, contem-
plates a High Court in two aspects. It contemplates a High
c
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
D
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 pewers
required by the High Court in the carrying on of its ordi-
nary 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 F
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."
G
The other Judges agreed with the view taken by the Chief
Justice and Mahmood, J. In Piari La/'s case (supra) which
was decided afters. 104 was introduced in the Code of 1908,
the following observations were made :-
H
(1) [1917] !LR 39 191.
218 SUPREME COURT REPORTS [1982] I s.C.R.

A "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 v. Ihsan-ullah Khan (1892)
ILR 14 All. 226. Section 104 of the Code of Civil Pro-
cedure provides for the cases in which an appeal shall lie
against an "order". Clause (ii) provides that "No appeal
B shall lie from any order passed in appeal under this sec-
tion". 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,
c 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 ·"
D 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
E an order passed by an appellate court. We think the preli-
minar} objection must prevail and ·we accordingly dismiss '
the appeal with costs."

Thus, in these two cases it was clearly held that where a Trial

F
Judge had passed an order in an appeal against an order passed by
the district judge under order 43 Rule I, a further appeal under the
Letters Patent was not maintainable. This view is fully supported
-
by the express lauguage in which clause 15 of the Letters Patent
has been couched, as referred to above. Thus the latter decision h-
of the Allahabad High Court in Ram Sarup' s case (supra) was •
clearly wrong in holding that an appeal under the Letters Patent
G would lie even against an appellate order of the Trial Judge passed
under 0.43, R. I even though it was prohibited bys. 104 (2) of the
Code.

Similarly, in Chappan's case (supra) the Court on an inter-
pretation of s. 588 (which now corresponds to the present Order 43
H Rule 1) clearly held that an appeal would lie to the High Court
BABULAL v. JAYABEN (Fazal Ali, J.) 219

against the orders contemplated in various clauses of s. 588 of the A
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 XLIII of the Code, it B
is not appealable unlesss 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
v. Upendra Mohan Roy Chaudhury & Ors.(') while criticising the

- judgment of Sir Richard Couch, C.J. in The Justice of the Peace for
Calcutta (supra) the Court as an alternative argument clearly held
that Order 43 Rule I would apply pro tanto to the Trial Judge and
c
on this ground also the order would be appfalable ti a Division
Bench. In this connection. the celebarated jurist Sir Manmatha
Nath Mookerjee, J. observed as follows:-
D
"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 pro-
vided in cl. (s) of r. I of or. 43 of the Code. Under the
present Code (Act V of 1908) it cannot be contended that
E
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 regading the applicability of
Order 43 Rule I to an order passed by the Trial Judge was rendered
by a Full Bench in Mathura Sundari D1ssi v. Haran Chandra Shaha
- & Ors.(2) where Sanderson, C.J. observed thus :-· ·
F

• "By the terms of s. ll7, the Code is made applicable to
the High Court, and 0. 43, R. I 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
G
from a learned Judge of the High Court. I cannot follow
that argument. It is part of the defendant's case that O. 9
R. 8 applies. · That order is in effect a part of the Civil
Procedure Code. It seems to me strange that the plaintiff
H
0) (1934-35)39 CWN 155.
(2) AIR 1916 Cal. 361.
220 SUPREME COURT REPORTS [1982] I S.C.R.

A should be subjected to 0. 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 argu-
B ment 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 vie,w or a
reasonable construction to put upon the Code and the rules
made under it. In my judgment, the Code and the rules do

c
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
D may be said that there are primq 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 Legis-
lature has in the Code allowed an appeal in a particular case,
affords to my mind prima facie grounds for supposing that
that case is of a class which this Court considers appealable
E nder its Letters Patent ... Looking at the nature of the order
appealed from, I think I should hold that it is appea/able as a
'judgement' under the Letters Patent."

and Mookerjee, J. observed thus : -

F "The term "Rule" which finds a place in s. 117 is
defined in clause 18 of s. 2 of the Code to mean "a rule
contained it the First Schedule or made under s. 122 or
s. 125." Our attention has not been drawn to any such •
rule which makes 0. 43, R, 1, clause (c) inapplicable. On ,., __
the other hand, 0. 49, R. 3 which excludes the operation 4

G of other rules, lends support to the contention of the appel-
lant that 0. 43, R. I clause (c) is applicable to the present
appeal ......

H "S. 104 of the Code of 1908 is materially different
from S. 588 of the Code of 1882. It provides that lie from
BABULAL V. JAYABEN (Fazal Ali, J.) 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 thne being in force from no
other orders." The effect of s. 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 B
that this appeal is competent under Clause (c), R.l, 0.43 of
the Civil Procedure Code.

I am further of opinion that the appeal is competent also
under Clause 15 of the Letters Patent."
c
(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 argu·-
ments of the respondents that Order 43, Rule 1 will have no D
application to internal appeals in the High Court under the provi-
sions of the Letters Patent.

A similar view was taken in Lea Rodin's case (supra) where
the foll owing observations regarding the applicability of Order
43 Rule I in respect of an order passed by a Trial Judge were E
made:-

"As an order refusing an application for the appoint-
ment 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 he entitled
F
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, C.J., as well.
The order appealed from in this case is, in our opinion, a
'judgment' within the meaning of Cl. 15, Letters Patent.
We may add that there are decisions of this Court in which G
orders discharging or refusing to discharge a recei-
ver appointed in a suit, after the suit had come
to an end or had become infructuous, have been
held to be 'judgments' and so appealable ... But there is
another and a far simpler ground on which it must be held H
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 SUPREME COURT REPORTS [1982] I S.C.R.

A 0. 43 of the Code. Under the present 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 Malhura Sundari
Dassi v. Haran Chandra Shaha & Ors. (AIR 1916 Ca.
B 361)."

(Emphasis ours)
Jn Too/see Money Dassee & Ors. v. Sudevi Dassee & Ors.
(supra) Maclean, C.J. while relying on the decision of the Judicial
c Committee in Hurrish Chunder Chowdry' s case made the follow-
ing pithy observations :

"To my mind the first of these points has been
authoritatively decided against the view of the present res-
pondents by the Judcial Committee of the Privy Conncil in
the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi
D
(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 jthe effect of restricting certain appeals,
applies to such a case as this where the appeal is from one
E 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 follo-
F wing 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 f-

description specified therein, there is no Court of Appeal
G 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.

H
I understand this to mean that section 588 does not
affect any matter coming within clause 15 of the Letters
BABULAL v. JAYABBN (Pazal Ali, J.) 223

Patent, and if I may venture to •say so, the reasons which A
led to the expression of that opinion and which have not
been given in the jndgmeilt reported may 'be those stated
by me for arriving at the '.same conclusion.

B
I have no ,.'donbt that we are bound to follow to the
fullest extent the opinion expressed by their'.Lordships of
the Privy Conncil that section 588 of the iCode does not
apply to the case now !before us, and that this matter has
thus become settled law".
c
And Ammer Ali, J. while dissenting from the applicability ~of s. 588
held that the order appealable under s. 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 s. 104 read with Order 43 Rule I apply to the Trial Judge. In
P. Abdul Gaff'or v. The Official Assignee(1) the following observations D
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 E
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 1 to an F
appeal from the Trial Judge under the Letters Patent was raised and
• decided by the Jammu & Kashmir High Court in Abdul Samad &
Ors. v. The State of J & K (') a decision to which one of us (Fazal
Ali, C.J. 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 P.C. excepting clause (JJ) tht:reof, would
H
(I) !LR (1925] 3 Rangoon 605.
(2) AIR 1969 J & K 52.
224 SUPREME COURT REPORTS [1982] l s.C.R.

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".

8 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 Bag/a v. Kanti Chunder Mukerjee & Anr. (1)
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
D 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.1 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.
E 3, C.P.C., that both sec. 104 and Or. XL/II, r. I, 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 s. 117 and Order 49 Rule 3
F 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, C.J. in a
Full Bench decision of the Rangoon High Court in ln re: Doyabhai ,J -

Jiwandas & Ors. (supra) where the Chief Justice pithily observed as •
follows :-
G
"In many statutes in India, of c'>urse, a Right of
appeal from an order passed pursuant to the statute is
expressly provided, and in such ~ases an appeal will lie on
the terms and conditions therein prescribed. I will not
H pause to enumerate or discuss these enactments, although

(I) 40 C.W. N. 1264.
BABULAL v. JAYABEN (Faza/ Ali, J.) 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 enanctment 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 I 04 and Order 43, Rule 1)".
B
Thus, there appears to be a general consensus of judicial
opinions on the question of the applicability of Order 43 Rule I to
Letters Patent appeals .
•
- •
This now brings us to the second Ii mb of the argument of
Mr. Sorabjee that even assuming that Order 43 Rule 1 does not
apply to the High Court so far as the Trial Judge of the said court
c
is concerned, there can be no doubt that the orders indicated in
various clauses of Order 43 Rule 1 possess the attrib_utes 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 I to hold hy a D
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 I by the process E
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 1 are matters of moment deciding
F
valuable rights of the parties and in the nature of final Orders so
• as to fall within the definiton of 'judgment'.
This Court in Radhey Shyam v. Shyam Behari Singh(') 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 G
between the parties regarding their valuable rights. In this connec-
tion, this Court observed thus :-

"In our view an Order in a proc~.eding under 0.
XX!, r. 90 is a "judgment" inasmuch as a proceeding raises H
(I) [1971] I SCR 783.
226 SUPREME COURT REPORTS [1982] 1 S.C.R,

A 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
8 receiver or grant an injunction and similar Orders mentioned in
various clauses of Order 43, Rule I 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 s. l 04 read with Order 43 Rule l •
c 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 ss. I 04 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 s. 104 which in terms does not apply where a special law
D makes certain special provisions.

We now proceed to discuss these cases briefly. In Pandy Walad
Dagadu Mahar & Anr. v. Jammadas Chotumal Marwadi (') the
identical point which is at issue in the instant appeal was not
involved and the finding given by the High Court was merely in-
E cidental. 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
F 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.
G 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,
H According to their opinion, the appeals under the Code of Civil

(1) AIR 1923 Born. 218.
BABULAL v. JAYABEN (Fazal Ali, J.) 227

Procedure and those under the Letters Patent were, so to say two A
separate compartments having different spheres of their own. With
due deference, we might point out that such a view is based on
a total misinter pretation 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 incon-
sistency, whatsoever between the Letters Patent and s. 104 read B
with order 43 Rule I. 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 legaUy 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 c
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 s. 117 and Order 49 Rule 3 which completely demolishes
the presumptuous process of logic adopted by the court. Thirdly,
D
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, s. 39 of the Arbitration Act or s. 202 of the Indian Com-
E
panies Act 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 pre-
F
sentation 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 jurisdic-
tion 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
G
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,
H
interlocutory orders passed by District courts in the mofussil could
be appealable to the High Court, there was no reason why inter-
228 SUPREME COURT REPORTS (1982) l s.C.R.

A 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 whithin 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 l, to the original suit tried by the
Single Judge (Trial Judge).
8
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
c the very spirit of the Letters Patent. In a later judgment of the
Bombay High Court in Vaman Ravji Kulkarni v. Nagesh Vishnu
Joshi & Ors.,(') the following observations were made : -

"I am, with respect, of opinion that the view taken ,/-
D by the full Bench of the Madras and Calcutta High Courts
in the cases referred to above is correct, and that the ques-
tion must be regarded as having been finally settled by the
decision of the Privy Council in 10 LA. 4. (Hurrish Chunder
Chowdry v. Kali Sundari Debi) S. 104. Civil P.C., which
refers only to appeals to the High Court from Courts subor-
E dinate 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.)

F
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 specifi-
•
cally taken away bys. 104, Civil P.C. and are not, therefore,
affected by it ..... Special enactments are not repealed by
G 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 s. 104, Civil P.C., 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
H in an appeal under Sub-s. (I). Sub-s. (2) is in no way

(1) AIR 1940 Born. 216.
BABULAL V. JAYABBN (Fazal Ali, J.) 229

inconsistent with cl. 15 of the Letters Patent and the two A
can stand together, the former appplying to appeals under
the Code, and the latter to special appeals within the High
Court ... I am satisfied that s. 104, Civil P.C. does not con-
trol cl. 15 of the Letters Patent, and in spite of the absence
of a saving clause in suh-s. (2) of s. 104 does not affect or
cut down the right of appeal conferred by the Letters
Patent." B
(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 s. 588 (which now c
corresponds to Order 43 Rule I) 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 s. 104 by assuming that there is a confiict between
s. 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 s. l 04 does D
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 s. I 04 would not apply
either expressly or by necessary intendment. In this view of the E
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. v. Smt. Revati Devi and Ors.(')
the Court held that no appeal against an order passed by a Trial
Judge under s. 202 of the Companies Act would lie to a Division F
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:
G
"It is true that Orders 40 & 43 both apply to the High
Court but the question here is whether 0. 43 makes provi-
sion 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
H
(I) AIR 1953 All. 647.
230 SUPREME COURT REPORTS [ 1982] 1 s.c.R.

A the same Court.... While s. 96 deals with original decree,
s. 104 Civil P.C. deals with orders, not being decrees, and
the orders that are appealable are set out under 0. 43,
C.P.C. 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
B 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.

c If s. 104 read with 0. 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 s. 104 or
0. 43 ever intended to deal with appeals from a Judge or
Judges of one Court to a larger number of Judges in the
D same Court. It is no doubt true, as has been held by their
Lordships of the Judicial Committee in-' Mt. Sabitri
Thakurain v. Savi' (AIR 1921 PC 80) thats. 104 as well as
0. 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
E the same Court independently of the Letters
Patent of the Court. As we have said if 0. 43 or s. 104,
Civil P.C., 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 hnve to be a Court constituted for
I' hearing an appeal and the only provish'n 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 judg-
ment, and, if an order is not a judgment, then cl. I 0 of the
G 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
0. 43 R. I, or s. 104, Civil P.C. without any reference to
cl. IO of the Letters Patent, can help the appellants."
H ,
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.
BABULAL v. JAYABEN (Fazal Ali, J.) 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
s. 117 and Order 49 Rule 3, as discussed above. Thus, the first part of B

l the reasoning of the High Court is totally irrelevant and wholly un-
intelligible. The point at issue is ifs. 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. C

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 0
also is based on a misconception of Order 43 Rule l. 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 jurisdic-
tion would lie with the Division Bench as contemplated by the Letters E
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 v. Savi (AIR 1921 PC 80) and has interpreted the
ratio of this case to mean that s. I 04 would not apply to High Courts
which is exactly what the Privy Council does not say. With due res- F
peel, 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, there-
fore, we are of the opinion that this case has also not been.:lcorrectly G
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 v. Shri Snti Godawari Upasani Maharaj H
232 SUPREME COURT REPORTS (1982) 1 S.C.R.

A of Sakori & Ors. (') where Niyogi, J. observed as follows :-
"Clause 10, Letters Patent defines the appellate jurisdic-
tion 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
B to the High Court is not governed by s. 96 or s. 100 or s.
104, Civil P.C., but by cl. 10, Letters Patent ............ This
right of appeal depends on the special provision made in
the Charter. S. 4, Civil P.C., provides that the Code does
not affect any special jurisdiction or power .conferred, or
any special form of procedure prescribed by or under any
c 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"'.
D
With due respect, we are unable to agree with the opinon
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
E to a High Court is not governed by s. 100 or s. 104 but by cl. 10 of
the Letters Patent oc 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 s. 104. Sections 96 to 100 expressly deal with
F 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, s. 104 does not deal with appeal
against a decree at all but provides a forum for appeal against orders
G under Order 43 Rule 1 which are mainly orders of a final or quasi-
final nature passed during the pendency of a suit. Section !04,
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
H line of reasoning adopted by the aforesaid High Court in holding
(1) AIR [ 1940] Nagpur 39.
BABULAL v. JAYABEN (Fazal Ali, J.) 233

that s. 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 v. Gajadhar &
Ors. (1) Where the following observations were made --
"Firstly, 0. 43 has not been made applicable to
appeals from appellate decrees by 0. 43, R. 1, though the
B
rules of 0. 41 have been made applicable to them. So s.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. JO of the Letters
Patent".
c

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 D
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 l, an appeal could lie from a Trial Judge to a
Division Bench of the High Court. Secondly, the learned Judge
says that s. 104 bars a second appeal from the order and that the
•
Code of Civil Procedure makes no provision for appeal within the E
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 s. 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
F

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.
v. Shri Dhar & Ors. (2) the following observations were made:- G
"Such an order if made by a subordinate court is
appealableunderOr. 43 R. l, C.P. C.; it is, as we have seen
an Order from which in England an appeal lies, without
H
(l) AIR 1949 Nagpur 188 .
. (2) AIR 1960 All. 692.
234 SUPREME COURT REPORTS [1982] I S.C.R.

A leave,'to the Court of Apneal. 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
B 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 palce the hierarchy of the Conrts 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 I of an appeal
c from a Trial Jndge 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 s. I 04 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.
D
Another case taking a contrary view is again a case of the
Bombay High Court which also makes a rather interesting reading.
In J.K. Chemicals Ltd. v. 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
E of s. 104 and 0. 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
F
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
G right is not governed by the provisions of the Civil Proce-
dure 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 v. Kali Sunderi Debi-
(1883) !LR 9 Cal. 482 at p. 494)".
H
(1) AIR 1967 Born. 56.
BABULAL v. JAYABEN (Faza/ Ali, J.) 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 app< als in the High
Courts. This is doubtless factudly incorrect because we have referred B
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 c
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 wi1ile
dealing with Hurrish Chunder Chowdry's case (supra) that the Privy
Council had clearly laid down that s. 588 applied to the High Court
and this position has been understood in this very sense by several D
judgments discussed above. The High Court, therefore, has not
-correctly appreciated the real ratio of the Privy Council case, referred
to above.

As regards Choppan's case (supra), the conclusion of the High
Court is not borne out by the ratio of the Full Bench in the said E
case. It would appear that the Full Bench in the aforesaid case was
concerned with two questions :

(1) Whether in view of s. 622 of the old Code (which
corresponds to s. 115 of the Code of 1908) an Order
passed by a trial Judge could be revised by a larger
F
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 ss. 588 and 591 of the
Code of 1877 (which now corresponds to Order 43
G
Rule I).

In the instant case we are not concerned with the revisional
power but only with what old section 588 was. Far from deciding
H
that s. 588 was not controlled by the Letters Patent, the learned
Judge decided to the contrary. To begin with, Benson, J. formulated
236 SUPREME COURT REPORTS [1982] l S.C.R.

A the questions referred to the Full Bench thus :-

(I) 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 Viet.
B Chap. 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
c 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 C.J. observed as follows :
D
"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
E 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
F question before us) appears to me to come to this, that if
the order made by a single Judge only amounts to an ordei
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 :-
G
"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
H 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
, BABULAL V. JAYABEN (Faza/ Ali, J.)

such an order an appeal can be preferred to the High Court.
Whatever view be taken of section 15 of the Letters Patent
it would have been impossible to include section 588 among
those sections that do not spply to the High Court".
237

A

Thus, the ratio decidendi of the deision clearly goes to indicate
that the Full Bench of the Madras High Court had held in no B
uncertain terms that s. 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 J.K. Chemicals' s case (supra) was also wrongly c
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 s. 104 of the Code of 1908, some of the High Courts D
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 :- E

!"-<, (I) That there is no inconsistency between s. 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 s. I 04 read with Order 43 Rule I or to show that F
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 G
analogy.

(3) That having regard to the nature of the Orders con-
templated in the various clauses of Order 43 Rule 1,
there can be no doubt that these orders purport to H
decide valuable rights of the parties in ancillary
proceedings even though the suit is kept alive and
238 SUPREME COURT REPORTS ( 1982) 1 S,C.R.

A 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
B 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
c involved in this appeal. Despite our finding that s. I04 read with
Order 43 Rule 1 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 I. The next question that arises is under what circumstances
D 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
E serious question to be decided in this case and which is indeed
a highly vexed and controvesial one is as to what is the real con-
cept and purport of the worJ 'judgment' used in cl. I 5 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 centurty and in spite of such length of time, unfortunately,
F 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 proceeed to deal with the main controversy as to what
is the true scope, meaning and purport of the word 'judgment' used
G
in cl. I 5 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 deter-
mine as to when an order passed by a Trial Judge can be said to
H
be a 'judgment' within the meaning of. cl 15 of the Letters Patent.
A very narrow view on this point was taken by a Division Bench
BABULAL v. JAYABEN (Fazal Ali. J.) 239

of the Calcutta High Court in the case of The Justice of the Peace A
for Calcutta (supra) where Sir Couch, C.J. on an interpretation of
cl. 15 of the Letters Patent observed thus :

"We think that "judment" in clause 15 means a deci-
sion whch affects the merits of the question between the
parties by determining some right or liability. It may be B
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."
c
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:

(I) a decision which affects the merits of the question bet- O
ween 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 E
controversy finally leaving other matters to be decided
later.

Thus, examining the tests laid down by Sir Richard Couch,
C.J,, it seems to us that the view taken by the learned Chief Justice
F
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 judrment and hence, not apppealable. In giving this inter-
pretation the learned Chief Justice was guided by two consi-
derations: (l) that a liberal interpcetation may allow vexed
G
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 H
of the reasons given by him but we feel that despite those consi-
derations the law must be interpreted as it stands and a court is not
240 SUPREME COURT REPORTS [1982] 1 S.C.R.

A 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 vexacious appeals. In
such cases, a just balance must be struck so as to advance the objeet
of the statute and give the desired relief to the litigant;, if possible.
B Although it is true that this decision is practically the locus c/assicus
so far as the Calcutta High Court is concerned and has been consis-
tently 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
c Chief Justice were not only not foJlowed 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 necess-
ary for us to burden this judgment with later decisions of the
Calcutta High Court in trying to comment on the correctness of the
D principles laid down by Sir Couch, C.J. but a few instances may be
quite revealing.

In Chandi Charan Saha v. Jnanendra Nath Bhattacharjee and
Ors.,(') Sir Asutosh Mookerjee in his leading judgment modified the
strict rule of interpretation of 'judgment' laid down by Sir Couch,
E C.J. 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
F
observations of Sir White, C.J. 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
G formulated by White C.J. in the case of Tuljaram Row v.
Afagappa Chettiar (ILR 35 Mad. I), the decision is unques-
tionably 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
H
(I) 29 Calcutta Law Journal 225.
BABULAL v. JAYABEN (Faza/ Ali, J.) 241

it is made. If its effect, whatever its form may be and A
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: Mathum v. Haran (1915 ILR 43 Cal. 857)." B
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
c

fond adherence to the antiquated definition of Couch, C.J.,
and boldly acknowledge its allegiance to the tests laid down
by White, C.J." D
(Emphasis supplied)

After making these observations the Court further reiterated
the position in the following words.
E
"In more decisions than one of this Court this defini-
tion of 'Judgment' given by Couch, C.J. has been described
as classical, and yet in a long course of decisions this Court
has repeatedly exepressed the view that the definition is
absolutely exhaustive ...... Treating this definition as not of
an inflexible character and yet not experessly purporting F
to exetend it, the Court has in numerous cases emphasised
the necessity of scruitinizing the nature .of the decision in
each particular case in order to find out whether the deci-
sion amounts to a 'judgment' within the meaning of the
Clause.

In Shorab Merwanji Modi and Anr. v. Mansata Film Distri-
G
butors and Anr.,(') the following observations were made :

"On a strict construction of the Calcutta test, the
right or liability must mean some right or liability which is
H
(!) AIR !957 Cal. 727.
242 SUPREME COURT REPORTS [1982] 1 s.c.R.

A a subject-matter of controversy in the suit or proceeding
but in its application to individual cases, that strict cons-
truction has not been adhered to and was indeed often
departed from by Couch, CJ., 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
B actual dispute between the parties, were held by him to
come within the category of judgments."

In Mooammed Felumeah v. S. Monda/ & Ors. (') the Court

-
pithily observed as follows :

c "Now, so far as this Court is concerned, there is a con-
siderable 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 con-
sistently refused to regard it as, in any sence. exhaustive
or inflexible. Indeed, in essence and truth, it has been
D accepted merely as the starting point on a broad open field,
stretched in front of it in all its vestness 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 Ji mi ts."
+
The other leading case which puts even a narrower interpreta-
tion and, in our opinion, a clearly wrong one, on the word 'judg-
ment' is the Full Bench decision of the Rangoon High Court In Re
Dayabhai Jiwondas' s case (supra) where the following observations
were made:
F
"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."

G 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
H
(I) AIR 1960 Cal. 582.
BABULAL v. JAYABEN (Fazal Ali, J.) 243

have fallen into the error of equating the word 'judgment' with A
'decree' as usen 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 B
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, C.J. in
Tu/jaram Row's case (supra) where the learned Chief Justice poin-
tedly spelt out various tests and observed thus :-
c

"The test seems to me to be not what is the form of
the adjudiction but what is its effect in the suit or pro-
ceeding in which it is made. If its effect, whatever its form
may be, and whatever may be the nature of the the applica- D
tion 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 pro-
ceeding, I think the adjudication is a judgment within the
meaning of the clause. An adjudication on an application E
which is nothing more than a step towards obtaining a
final adjudication in the suit is not, in my opinion, a judg-
ment within the meaning of the Letters Patent."

I think, too, an order on an independent proceeding
F
which is ancillary to the suit (not instituted as a step towards
judgment, but with a view to rendering the judgment
effective if obtained) · e.g., 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."
G
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. 15 of
the Letters Patent :·
B
(1) It is not the form of adjudication which is to be seen
but its actual effect on the suit or proceeding;
244 SUPREME COURT REPORTS [1982] I S.C.R.

A (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 witb,
is to terminate the proceedings, the said order would
B 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

c
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 ~ the Trial Judge
granting or refusing ad-interim injunction or appointing
or refusing to apr oint a receiver.
n (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. ,

E (6) An adjudication based on a refusal to exercise discre-
tion 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.

F
Similarly, Krishnaswami Ayyar, J., who agreed with the 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
G 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, C.J., and as analysed
H /--
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
BABULAL v. JAYABEN (Fazal Ali, J.) 245

wide and may not be quite correct. While the view taken by Sir A
Richard Couch, C.J. in The Justice of the Peace for Calcutta (supra)
is much too strict, the one taken by Sir White, C.J. 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 B
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 v. Upendra Roy Choudhury, Kumar
• Gangadhar v. Kanti Chunder Mukherjee, Shorab Merwanji Modi v.
Mansata Film Distributors, Mohammed Felumeah v. S. Monda/.(supra) c
Some of the decisions have sounded a discordant note and have
gone to the extent of characterising the view of Sir Couch, C.J,
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, C.J. D
in Tuljaram Row's case have been followed by the Lahore High
Court in Ruldu Singh v. 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 v. Kuppa Venkata Krishua Sastry.(1)

A Full Bench of the Allahabad High Court, however, in Mt. E
Shahzadi Begam v. 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, C.J., speaking for the Court observed as
follows :-
F
"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".
G
Similarly, in a later Full Bench decision of the Nagpur High
Court in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot, (2)
Hidayatullah. J. (as he then was) who wrote the leading judgment,
very pithily described the essential requisites and the exact meaning
H
(I) AIR 1963 A.P. 9.
(2) AIR 1952 Nagpur 357.
246 SUPREME COURT REPORTS (1982] I S.C.R.

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
B 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 inevit-
c ably 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 con-
troversy. The decision may itself order that thing to be
done or not to be done or it may leave that over till after
D 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
E 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.
F
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 observa-
G
tions made by them regarding the scope and meaning of the word
'judgment' before giving our own view of the matter. Before, how-
ever, dealing with the cases of this Court we might indicate that in
view of the deciiions taken by us regarding the applicability of s. 104
read with Order 43 Ru le I even to internal appeals in the High
H 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 I having
BABULAL v. JAYABEN (Paza/ Ali, J.) 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. 8
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 c
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: D

"The judgment must be the final pronouncement which
puts au 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. E

We have indicated that the essential features of a
'judgment' are according to both the •Calcutta and the
Madras High Cotti-ts and all that we need say is that, in F
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 G
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:-
H
"Leave granted under clause 12 of the Letters Patent
constitutes the very foundation of the suit which is
148 SUPREME COURT REPORTS [1982] I s.C.R.

A 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
8 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 i
passed by a Trial Judge would be a 'judgment' for purposes of
appeal before a larger Bench.
c
Again in Union of India v. Mahindra Supply Co. (supra) this
Court clearly held that in enacting s. 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 ,•
D Code of 1908. In this connection, the Court observed as follows:-

"Under the Code, as amended, the view has consisten-
tly been taken that interlocutory judgments (i.e., decisions
though not amounting to decrees which affect the merits of
the questions between the parties by determining some
E right or liability) passed by single Judges of Chartered High
Courts were appeal able 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 s. 104 does not apply to internals ii) the High Court because
F
this Court while referring to the Code iil"ade specific reference to
s. 104 in the previous paragraph. Apart from this, there is no
observation by this Court regarding essential requisites of a Judg-
ment. In State of U.P. v. 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
G
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. Ba/iram (supra) and though they did not expressly
approve this decision they indirectly seem to have been impressed
H
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
BABULAL v. JAYABEN (Fazal Ali, J.) 249

order of the Trial Judge dismissing the appliction for review was A
appealable. We might mention here that under clause (w) of order
43 Rule I an order granting an application for review is appealable.

On a parity of reasoning, therefore, an order dismissing an appli-
cation for review would also be appealable under the Letters Patent B
being a judgment though it is not made appealable under Order 43
Rule I.

Jn Shankarlal Aggarwal' s case (supra) while indicating the
=
divergence of judicial opinion on the subject this Court held that c
an order under s. 202 of the Indian Companies Act was a judgment
within the meaning of Letters Patent and therefore appealable. We
might mention here that the Companies Act which confers addi·
tional original jurisdiction on the Trial Judge expressly makes an
order passed by the Trial Judge under s. 202 appealable and, there-
fore, it is manifest that any order passed under s. 202 would have D
to be appealable under the Companies Act and therefore it was
rightly construed as a judgment.

In Radhey Shyam v. Shyam Behari (supra) the question was
whether in an application under Order 21 rule 90 to set aside an E
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 : -

F
"In our view an order in a proceeding under 0. 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." G

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. H
250 SUPREME COURT REPORTS [1982) l s.C.R

A The last case of this Court to which our attention has been
drawn is Shanti Kumar R. Ganji v. The Home Insurance Co. of New
York (1) 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 he a judgment
within the meaning of the Letters Patent. The following observa-
B
tions 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 M.B. Sirkar' s case (AIR •
1956 Cal. 630) as to when an order on an application for
c 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
D 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 dejendent
the defence of immunity from any liability by reason of
E limitation, it is a judgment within the meaning of clause 15
of the Letters Patent. The reason why it becomes a judg-
ment 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.
F
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
G 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)
H
(!) [1975] 1 SCR 550.
BABULAL v. JAYABEN (Faza/ Ali, J.) 251

Thus, having noticed the ratio of some of the cases of this Court A
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 cl. 15 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 con-
notation and the import of the word 'judgment' particularly in the B
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 :· c
•
"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.. ....... "
D
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 s. 2 (9) of the Code of 1908, which defines
'judgment' into the Letters Patent : E
"judgment' means the statement given by the Judge
of the grounds of a decree or order".

In Mt. Shahzadi Begam v. Alak Nath and Ors., (1) Sulaiman,
C.J., very rightly pointed out that as the Letters Patent were F
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 :- G

"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
H
(1) AIR 1935 All. 620.
252 SUPREME COURT REPORTS [1982] I S.C.R.

A 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
B made by the Allahabad High Court on this aspect of the matter.

The definition of the word 'judgment' in sub-s. (9) of s. 2 of
the Code of 1908 is linked with the definition of 'decree' which is
defined in sub-s. (2) of s. 2 thus:
c
"decree" means the formal expression of an adjudica·
tion 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
D 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
E
(h) any order of dismissal for default.

Explanation :-A decree is preliminary when further
proceedings have to be taken before the suit can be com-
F pletely 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 con-
G sists 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 conclusive!} determines the rights of the parties with regard
to all or any of the matters in controversy. The concept of a
H judgment as defined by the Code of Civil Procedure seems to be
rather narrow and. the limitations engrafted by sub-s. (2) of s. 2
BABULAL v. JAYABEN (Faza/ Ali, J.) 253

cannot be physically imported into the definition of the word 'judg-. A
ment' 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 8
passed by a Trial Judge would amount to a judgment; otherwise
there will be no end to the number of orders which would be appeal-
able under the Letters Patent. It seems to us that the word 'judg-
ment' has undoubtedly a concept of finality in a broader and not a
narrower sense. Jn other words, a judgment can be of three c
kinds:-

(!} 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 judg- D
ment, 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. E
•
(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
F
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 judgmen; finally
deciding the cause so far as the Trial Judge is concerned
and therefore appealable to the larger Bench. (b) G
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 defen-
dant relating to maintainability of the suit, e.g., ba1
of jurisdiction, res judicata, a manifest defect in the D
suit, absence of notice under section 80 and the like,
and these objections are decided by the Trial Judge
254 SUPREME COURT REPORTS [1982] 1 S.C.R.

A 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
n 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.

c (3) lnterrnediary 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 I and have already been held by us to
be judgments within the meaning of the Letters Patent
and, therefore, appealable. There may also be interlo-
D cutory orders which are not covered by 0. 43 R. l
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
E 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
F 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 T!ght of the defendant it will
undoubtedly be treated as a judgment within the
G meaning of the Letters Patent so as to be appeal able 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
H nature and rather too remote because the plaintiff still
possesses his foll right to show that the defence is
BABULAL v. lAYABEN (Faza/ Ali, J.) 255

false and succeed in the suit. Thus, such an Order A
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 defen- B
dant, which is not appealable under any of the clauses
of 0. 43 R .1 though an order rejecting an application
to set aside the decree passed exparte falls within 0. 43
R.I 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
c
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, D
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 in terlo-
cutory judgment and is therefore, appealable to a larger
Bench.
E
'
..
)
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, e.g., 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
F

order of costs to one of the parties for its default or an order
exercising discretion in respect of a procedural matter agai11st 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
G
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
H
which decide matters of moment or affect vital and valuable rights
256 SUPREME COURT REPORTS (1982] I S.C.R.

A of the parties and which work serious injustice to the party con-
cerned. 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.
B
We might give another instance of an interlocutory order
which amounts to an exercise of dis.cretion 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 in-

c clude 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 charac·
n teristics 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 plain-
E tiff 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 who 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 inter-
F
locutory 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
; -
G 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
H 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
BABULAL v. JAYABEN (Fazal Ali, J.) 257
. ,_;.
. , under the Code of Civil Procedure, is legally erroneous and opposed A
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 gene- 8
rally the tests laid down by Sir White, C.J. 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, C.J. or more explicitly by Krishnaswamy Ayyar, J. as has
been referred to above.
c
Apart from the tests laid down by Sir White, C.J., the follow-
ing considerations must prevail with the court:

-\ (I) 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 D
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 incon-
venience or, to some extent, prejudice one party or the
other cannot be treated as a judgment otherwise the E
.' - 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
F
erroneous or causes grave and substantial injustice.

-' (2) That the interloc11tory 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
G
an ancillary proceeding or in the suit itself or in a part
of the proceedings.

(3) The tests laid down by Sir White, C.J. as also by
Sir Couch, C.J. as modified by later decisions of the
H
Calcutta High Court itself which have been dealt with
by us elaborately should be borne in mind.
258 SUPREME COURT REPORTS [1982] l s.c.R.

A 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 illustra-
tions of interlocutory orders which may be treated as judgments :

B (1) An order granting leave to amend the plaint by intro-
ducing 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 -
•
i

defendant.

c (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
D by him under clause 12 of the Letters Patent.

(5) An order deciding a preliminary objection to the main-
tainability of the suit on the ground of limitation,
absence of notice under s. 80, bar against competency
of the suit against the defendant even though the suit
is kept alive.
E
(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 s. 92 of the Code of Civil Procedure.
F
(8) An order varying or amending a decree.

(9) An order refusing leave to sue in forma pauperis.

(JO) An order granting review.

G (11) An order allowing withdrawal of the suit with liberty
to file a fresh one.

(12) An order holding that the defendants are not agricul-

H
turists within the meaning of the special law.

( l 3) An order staying or refusing to stay a suit under s. 10
/ ...
of the Code of Civil Procedure.
BABULAL v. JAYABEN (Faza/ Ali, J.) 259

(14) An order granting or refusing to stay execution of A
the decree. •

(15) An order deciding payment of court fees against the
plaintiff.

Here, it may be noted that whereas an order deciding the B
nature of the court fees to be paid by the plaintiff would be a judg·
ment 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 c
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 D
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 strait-jacket. 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 E
and a few cases which may have been left out, would undoub-
tedly 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 injunc- F
tion, it is undoubtedly a judgment within the meaning of the Letters
Patent both because in view of our judgment, Order 43 Rule l
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
G
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
H
'• instant case being a judgmept within the meaning of cl. 15 of the
260 SUPREME COURT REPORTS [1982] l S.C.J.,

A Letters Patent, the appeal before the Division Bench was maintain·
able and the Division Benih of the High Conrt was in error in dis-
missing the appeal without deciding it on merits. We have already
directed the High Court to decide the appeal on merits by our for-
mal order dated April 22, 1981.

B 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 Art. 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.
c 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.
D

AMARENDRA NATH SEN, J. The only question which falls for
detemination 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
E interlocutory application made in the suit, is appealable or not ?
In other words, the maintainability of an appeal filed before a Divi-
sion Bench of the Bombay High Court against an order of a learned
single Judge of the High Court dismissing an interlocutory applica-
tion for injunction and for appointment of a receiver by way of
interim relief pending final disposal of the suit in the original side of
F the High Court, forms the subject-matter of the present appeal.

The question is of some importance, as there appears to be
be no uniformity of the view amongst the various High Courts on the
comptence and the maintainability of such an appeal.
G
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 :-

H (a) that pending the hearing and final disposal of the
suit, the respondent i.e. the defendant in the suit, be
restrained by an order and injunction from in any
BABULAL V. JAYABEN (A.N. Sen, J.) 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 B
fit and proper person be appointed receiver of the said
lands which forms the subject-matter of the agreement,
• with all powers under 0.40, rule 1 of the Code of Civil
Procedure;

(c) ad-interims in terms of prayers (a) (b); and c
(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 D
dismissed the said application. Against the order of the learned
single Judge, the appellant preferred an appeal to the High Court of
Bombay. A preliminarly 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 E
not be considered to be a 'judgment' within the meaning of cl. 15
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 judgm,ent and no appeal would lie
from the said order and the appeal, therefore was incompetent and F
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
G
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 tim~ 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
H
learned brother Fazal Ali, J.
262 SUPREME COURT REPORTS (1982] 1 S.C.R.

A I have had the benefit of reading the judgment of my learned
brother Fazal Ali, J. in advance. I concur generally with the views l
expressed by my learned brother. I, however, propose to state my
own reasons for the order earlier passed by us.

The learned counsel appeari(\g on behalf of the respective parties
B 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 sucl1 an order
and this Court should resolve the conflict and decide the question
c of appealability of such an order and necessariliy 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 I
D 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,
E as I have already indieated, 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.
F
Mr. Sorabjee, learned counsel appearing on behalf of the
appellant, has raised two principal conteutions. The first contention
urged by Mr. Sorabjee is that in view of the provisions contained
in S. 104 of the Code of Civil Procedure read with Order 43 thereof, ,
the Order is appealable under the Code and an appeal from the
G order becomes clearly maintainable. The oth,r contention raised
by Mr. Sorabjee is that the order should in any event be considered
to be a judgment within the meaning of clause 15 of the Letters
Patent, bearing in mind the provisions contained in S. 104 of the
Code of Civil Procedure and also Order 43 thereof.
H
In support of his first contention, Mr. Sorabjee has argued
that an appeal is a creature of statute and in the absence of any
BABULAL v. JAYABEN (A.N. Sen, J.) 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. 15 of the Letter Patent makes such pro-
vision for an appeal being filed against any Order passed by a
learned Single Judge on the original side of the Hight 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 B
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 C
Code. In this connection Mr. Sorabjee l1as drawn our attention to
S. 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 S. 104 and
Order 43 of the Code of Civil Procedure. It is the argument of D
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 S. 104 of the Civil Procedure Code E
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 provisons of the Code and particularly
to Ss. 4, 98-104, 116 to 120, and S. 122 and to order 4 3 rule l

- thereof. Mr. Sorabjee in this connection has also relied on the
following decisions :- F
1. Mathura Sundari Dass v. Haran Chandra Shaha (1)

. ' 2.
3.
Lea Badin v. Upendra Mohan Roy Choudhary (')
Unian of India v. Mahindra Supply Co. (')
4. Kumar Gangadhar Bag/av. Kanli Chander Mukherji (4) G
5. Sonbai v. Ahmedbhai Habibhai (')

(1) AIR 1916 Cal. 361.
(2) AIR 1935 Cal. 35.
(3) [1962] 3 SCR 497. H
(4) 40 CWN 1264.
(5) 9 BHR 398.
264 SUPREME COURT REPORTS (1982] I S.C.R.

A Mr. Sorabjee has criticised the view expressed by the Bombay
High Court that S. 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
8 meaning of cl. 15 of the Letters Patent. Mr. Sorabjee comments that
cl. 15 of the Letters Patent does not, in any way, seek to control or
curb the provisions contained in S.. 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 S. 104 and Order 43 of the Code are applicable
c 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 15 of the Letters
Petent may make such orders which may not be appealable under
the Code, still appealable as judgment under cl. 15 of the Letters f-
Patent. In other words, it is the submission of Mr. Sorabjee that
D cl. 15 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-
E 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 S. 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
F
this aspect was not argued before the Division Bench of the Bombay
High Court, he is entitled to urge this point before t:1is Court as this
point is a pure point of law.
/

Mr. Sorabjee has next contended that in any event the order
G under appeal should be considered io be a judgment within the mean-
ing of cl. I 5 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
H 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
BABULAL v. JAYABEN (A.N. Sen, J.) 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 B
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 S. 104 and Order 43 or in
any other statute with regard to the appealability of any order do
c
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 D
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 connec-
tion, Mr. Sorabjee has referred to the following decisions :-

I. The Justice of the Peace for Calcutta v. The Orientatal E
Gas Co. Ltd. (1)
. ·.
2. T.V. Tulzaram Row v. M.K.R.V. Allagappachettiar (')

- 3.

4.
Ru/du Singh v. Sanwal Singh (')

Shah Hari Dial & Sons v. So/mama/ Beliram (')
F

5. In Re: Dayabhai Jiwandas and Ors. v. A.M.M. Muru-
gappa Chettiar (')
·' '
6. Abdul Samad & Ors. v. State of J. & K. (6)
G
(I) 8 BLR 433.
(2) !LR 35 Mad I.
(3) !LR 3 Lah. 188.
(4) !LR 23 Lah. 491.
(5) !LR 13 Rangoon 457. H
(6) AIR 1969 J & K 52.
266 SUPREME COURT REPORTS (1982] I S.C.R.

A 7. Standard Glass Beads Factory v. Shri Dhar & Ors. (')

8. Sri Raja Vallanki Venkata Chinnayamma Rao Bahadur
Zimidarni Garu v. Sri Raja Kotagiri Subemma Rao
Bahadur Zimidarni Garu (')

B 9. Chitaranjan Monda/ v. Shankar Prasad Sahani (3)

10. Manohar Damodar Bhoot v. Baliram Ganpat B/wot (')

11. Masanta Film Distributors, Calcutta v. Sorab Marwanji
Modi (5)

c 12. J.K. Chemicals Ltd. v. Kreba and Co.( 6)

13. Kedar Nath Mitter v. Denobandhu Shaha(')

14. Shorab Merwanji Modi and Anr. v. Mansata Film Dis-
tributors and Anr.(8)

n 15. M.B. Sarkar and Sons v. Powell and Co.(")

16. Asrumati Devi v. Kumar Rupendra Deb Rai and Ors.('")

17. State of U.P. v. Dr. Vijay Anand Maharaj(")

18. National Bell Co. v. Metal Goods Co. (P) Ltd.( 12 )
E
19. Shanti Kumar R. Canji v. The Home Insurance Co. of
New York(") -.
Mr. Sorabjee has submitted that this Court should lay down
the guidelines or enumerate the principles to remove the confusion
F and resolve the conflict in the sphere of judicial determination as

( 1) AIR 1960 All. 692.
(2) AIR 1925 Mad. 586.
(3) AIR 1972 Cal. 469.
(4) AIR 1952 Nag. 357.
G (5) AIR 1955 Born. 266.
(6) AIR 1967 Born. 56.
(7) AIR 1916 Cal. 580.
(8) AIR 1957 Cal. 727.
(9) AIR 1956 Cal. 630.
(!OJ [1953J 1 SCR 1159.
H (11) [1963] I SCR I.
(12) [1971] 1 SCR 70.
(13) [1975] I SCR 550.
BABULAL v. IAYABEN (A.N. Sen, J.) 267

A
--} 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 S. 104 and Order 43 thereof are not
B
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
c
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 S. 4. They have also strongly relied on the
decision of the Bombay High Court in the case of Vaman Raoji
Kulkarni v. Nagesh Vishnu Joshi(') and also on the decision of the D
same High Court in the case of J.K. Chemicals Ltd. v. 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 S. 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 E
Bombay High Court and should be upheld by this Court. They
have also relied on the following observations of the Judicial Com-
mittee in the case of Hurrish Chunder Chowdhry v. Kali Sundari
Debia(2) at p. 17 :-

"It only remains to observe that their Lordships do not F
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 G
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
H
(I) AIR 1940 Born. 216.
( 2) 10 I.A. 4.
268 SUPREME COURT REPORTS [1982] I S.C.R.

A. of cl. 15 of the Letters Patent. They have contended that an order
on an interlocutory application refusing to grant an injunction or
J:--
appoint a receiver cannot be considered to be a 'judgment within
the meaning of cl. 15 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
B which were cited by Mr. Sorabjee and they have placed particular
reliance on the decision of the Bombay High Court in the case of
J.K. Chemicals Ltd. v. 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
c 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~

D I propose to deal with the question of applicability of the
provisions contained in S. 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. S. I of the Code makes it clear
E that the Act is applicable to whole of India excepting the places
mentioned in the said section and the Act, therefore, applies to
Maharashtra. S. 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

F
and every Court of Small Causes is subordinate to the High Court
and District Court. -
S. 4 of the Code reads :-

"(!) In the absence of any specific provision to the con· I -
trary, nothing in this Code shall be deemed to limit or
G 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
H
of the proposition contained in sub-section (l), nothing
in this Code shall be deemed to limit or otherwise
BABULAL v. JAYABEN (A.N. Sen, J.) 269

affect any remedy which a landholder or landlord may A
have under any law for the time being in force for the
recovery of rent of agricultural land form the produce
of such land."

S. 5 of the Code deals with the applicability of the provi-
sions of the Code to Revenue Courts. S. I 00 of the Code 8
deals with appeais from Appellate Decree and S. I 00-A which has
been introduced into Jhe Code w.e.f. 1.2.1977 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
c
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 S. 104 are : -
\
• "S. 104 (I); An appeal shall lie from the following
D
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
E
.. • x x x x

(ff) an order under S. 35A;

(ffa) an order under S. 91 or S. 92 refusing leave to institute
a suit of the nature referred to in S. 91 or S. 92 as the F
case may be;

(g) an order under S 95;
'
(h) an order under any of the prov1S1ons of this Code
imposing a fine or directing the arrest or detention in G
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; H·
Provided that no appeal shall lie against any order specified
\
/

270 SUPREME COURT REPORTS [1982] 1 s.c.R.

A 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."

B Sections 105 and I 06 may also be quoted :-

"(I) 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
c 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 (l),
where any party aggrieved by an order of remand
D from which an appeal lies does not appeal the refrom, •
he shall thereafter be precluded from disputing its
correctness.

S. 106 : Where an appeal from any order is allowed
it shall lie to the Court to which an appeal would lie from
E 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
F court of a Judicial Commissioner, are made in para IX of the Code
which consists of five sections namely Ss. ll 6 to 120 and the said
sections are as follows :-

"S. Jl6: This Part applies only to High Courts not
being the Court of a Judicial Commissioner.
G
S. 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.

S. 118 : Where any such High Court considers it
H necessary that a decree passed in the exercise of its original
civil jurisdiction should be executed before the amount of
BABULAL v. JAYABEN (A.N. Sen, J.) 271

the costs incurred in the SUI! can be ascertained by taxa- A
tion, 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 B
costs shall be ascertained by taxation.

.. S. I 19: 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 c
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 attor-
neyes.
D
• S. I 20 : The following provisions shall not apply to
the High Court in the exercise of its original civil jurisdic-
lion, namely, secs. 16, 17and 20.

S. 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 superin- E
tendence. S. 129 further providos :

"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
F

it shall think fit, and nothing herein contained shall affect
. \
the validity of any such rules in force at the commenece-
ment of this Code.

The material provisions contain in 0. XLIII of the Code of G
Civil Procedure may be set out :

"An appeal shall lie from the following orders under
the provisions of S. 104, namely :-

. \. x x x x H
x x x x
)

272 SUPREME COURT REPORTS (1982] 1 S.C.R.

A (q} an order under rule 2, rule 3 or rule 6 of Order
XXXVIII:

(r} an order under rule l, rule 2, rule 2A, rule 4 or rule I 0
ofO. XXXIX;

B (s} an order under rule l, or rule 4 of Order XL.

x x x x

2. The rules of 0. XLI shall apply, so far as may be, to
appeals from orders."
c
On a proper analysis of the relevant prov1s10ns of the Code
there cannot be, in my opinion, any manner of doubt that S. 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
D Court. S. 1 of the Code which provides for territorial extent 'of the
•
operation of the Code makes this position abundantly clear. The
argument is that S. 104 and Order 43 of the Code do not have any
application to the original side of the High Court, although varioui
other provisions of the Code may apply to the High Court including
its original side. This argument, as we have earlier noticed, is made
E mainly on the basis of the provisions contained Ss. 3 and 4 of the
Code. S. 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
F
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
I •
side of the High Court to the High Court. An app ea! 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
G
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
H 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
BABULAL v. IAYABEN (A.N. Sen, J. ) 273

High Court. In the same way, in case of any other order in res· A
pect 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. S. 3 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. S. 4 of 8
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 con·
trary, no provision in the Code shall be deemed to limit or other-
wise affect any special or local law in force or special jurisdiction or
power conferred or any special form of procedure prescribed by or c
under any Jaw for the time being i~ force. The argument that S. 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. Cl. 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 D
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 can·
not be said that the side clause intended to lay down that in no
E
'' 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
4 •

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 compe-
tent Court unless a right of appeal has been specifically conferred on
the litigant by law. Cl. 15 of the Letters Patent confers on the F
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
G
statute confers on the litigant any right to prefer an appeal in res-
pect 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
H
from any judgment is in no way affected and is fully retained;
\
/

274 SUPREME COURT REPORTS [ 1982] I S.C.R.

A and in addition to the said power, a High Court may he competent
to entertain other appeals by virtue of specific statutory provisions.
S. 4 of the Code cannot, therefore, be said to be in conflict
with the provisions contained in cl. 15 of the Letters Patent and
S. 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.
B 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. S. 5 -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
c 120 it is convincingly indicated that S. 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). S. 117 specifically provides that the pro-
visions of the Code shall apply to High Court save as provided in
D part IX or in part X. S. 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 jurisdic-
tion. Part X which deals with rules and manner of framing thereof
does not have any material bearing on the question of applicability
of S. l 04 and Order 43 of the Code to the original side of the High
E 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. 16,17 and
20 of the Code do not apply to the High Court in the exercise of its
original civil jurisdiction. S. 104 of the Code is contained in part
F 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. S. 104 of the Code provides for appeals
G from orders and clearly sllpulates 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 S. 104 of the
Code clearly provides that an appeal shall lie from the orders
H mentioned in rule I of 0. 43 under the provisions of S. 104 and the
orders referred to therein particularly in (q), (r) and (s) clearly
BABULAL v. JAYABEN (A.N. Sen, J.) 275

indicate that the order in question is an appealahle order. As I A
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 S. 104 of the Code read with Order 43 thereof. A Conrt will be
slow to deprive a litigant of the statutory right merely on the ground B
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 S. 104 which makes the order under appeal and also various
other orders referred to therein appealable under the Code, recog-
nises that apart from the order made appealable under the Code
there may be other orders appealable by any law for the time being c
in force and further provides that no appeal will lie from any orders
other than the orders expressly p1ovided 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 D
S. lOOA in the Code (by the Amending Act 104 of 1976, S. 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 E
no. way curtailed or affected by S. 104 of the Code of Civil Procedure
and S. 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 S. 104(!), 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
F
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 v. Mahindra Supply Co. (supra) at p. 511 may
be usefully quoted :-
G

"The intention of the legislature in enacting the sub-s.
(1) of S. 104 is clear: the right to appeal conferred by any
other law for the time being in force is expressly preserved H
This intention is emphasised by s. 4 which provides that in
the absence of any specific provision to the contrary
276 SUPREME COURT REPORTS [1982) 1 S.C.R.

A 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
s. 104(1) of the Code of Civil Proeedure, 1908".
B
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 v. Savi
and Anr.,(') the Judicial Committee held at p. 82-83 as follows:- •
"The orders and rules under the Code are by Section
c 121 given the same affect as if they had been enacted in the
Code, and therefore Ord~r 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 104(1) is the
section relied on for this purpose It prescribes what
D orders shall be appealable and enumerates them, and among
the orders enumerated there is not included such an order
as that made by Choudhury, 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
E effect of section 104 it should be compared with the corres-
ponding 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,
•- -
F
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
/ .
G 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
H Court's appellate jurisdiction from a decree of the High

(I) [1921] P.C. 80.
BABULAL v. JAYABEN (A.N. Sen, J.) 277

Court in its original ordinary jurisdiction, is thereby saved. A
Thus regulations duly made by Orders and Rules under
the Co'1e 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 (I) S. 104, therefore, is clearly not to B
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 v. Haran Chandra Shaha
and Ors. (supra), Sanderson, C.J. observed at p. 362 as follows·:

"I would be very lath 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 D
definite opiniol) 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 E
.. the purpose of making law and regulations'. By the terms
of S. 117 the code is made applicable to the High Court,
and 0. 43. R. I, 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 jthe High Court. I cannot follow that F
argument. It is part of the defendant's case that 0.9, R. 8
applies. That order is in effect a part of the Civil Proce-
dure Code. It seems to me strange that the plaintiff
' should be subjected to 0.9, 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 G
and wants to call in aid another of the rules which-
when his application for re-instatement 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
,H
because there is no appeal from the learned Judge of the
High Court under the Civil Procedure Code. I think this
278 SUPREME COURT REPORTS (1982) I S.C.R.

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 iu the same case at
B pp. 364-365 held as follows :

"The question, consequently, arises whether 0,43, r. I,
clause (c), is. applicable to an order under 0. IX, r. 9, made
by a Judge on the original side of this Court.

c On behalf of the appellant, reliance has been placed
upon S. 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, 1861.'
The only provision in Part IX, which may have any possi-
ble hearing is that contained in S. 120 which obviously
D does not touch the present question. The provision in
Part X, which deal with the matter, is contained in S. 129:
this also does not militate against the contention of the
appellant. The term 'rule', which finds a place in S. 117,
is defined in clause 18 of S. 2 of the Code to mean 'a rule
contained in the first Schedule or made under S. 122 or
E S. 125'. Our attention has not been drawn to any such
rule which makes 0. 43, R. 1, Clause (e), inapplicable.
On the other hand 0.49, R. 3, which excludes the operation
of other rules, lends support to the contention of the appe-
llant that 0. 43, r. 1, cl. (c) is applicable to the present
appeal.

But it bas been argued on behalf of the respondents,
on the authority of the decision of the Judicial Committee
in Hurriah Chandra Choudhary v. Kali Sudari Dasi, that the
Civil Procedure Code, in so far as it provides for appeals,
G 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 con-
sidered by this Court in Toolses Money Dassesv. Sudevi
Dasses (1890) 25 Cal. 361) but it is not necessary for my
H present purpose to determine its hearing in all its implica-
tions, because in my opinion, the law has been substan-
tially altered since that decision was pronounced. S. 104
BABULAL •. JAYABEN (A.N. Sen, J.) 279

of the Code of 1908 is materially different from S. 588 of A
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 S. 104 is thus, not to take
away a right of appeal given by clause l 5 of the Letters B
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 peretbically that in the case of Tooles Money
Dasses v. 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 pro- c
vision for the Constitution of a Court to which such an
award might be preferred. S. 106 of the Code, however,
lays down that "where an appeal fr0m any order is
allowed, it shall lie to the Court to which an appeal would
lie from the decree in the snit in which such order was
D
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 S. 13 of the Indian High Courts
Act. I hold accordingly that this appeal is competent
under cl. (c), R. 1, 0. 43 of the Civil Procedure Code.''
E
In the case of Lea Badin v. 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 niust he held that an appeal is competent. The order in
F
the present case is one for which a right of appeal is pro-
vided in cl. (s). R. 1, 0. 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
G
case of 1918 Cal. 361(4)".

On a plain reading of the various prov1Sions of the Code
and on a proper construction thereof I have no hesitation in holding
that S. I 04 of the Code of Civil Procedure applies to the original H
side of the High Court and the order in question is clearly appeal able
by virtue of the provisions contained in S. 104(1) read with Order
280 SUPREME COURT REPORTS (1982] I S.C.R.

A 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 v. Nagesh Vishnu Joshi (supra)
proceeds on an incorrect appreciation and interpretation of the
B provisions of the Code. As I have earlier discussed, there
is no question of S. 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 S. 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 (I)
c of S. 104, which brings in its purview S. 43 of the Code. The fur-
ther approach of the Bombay High Court in that case as to sub-
ordination of a judge of the High Court sitting singly on the origi-
nal 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
D 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
E Hurrish Chandra Choudhary v. 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 S. 588 of the Act 10
F 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 S. 104 of the Code of
G Civil Procedure of 1908 is materially different from S. 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 Sudan' Dassi v. Haran Chandra Shaha (supra).

I, therefore, accept the first contention of Mr. Sorabjee that the
H order in question is appealable under S. 104 (11 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
BABULAL V. JAYABEN (A.N. Sen, J.) 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 con-
tention raised by him, namely, that the order in question is also
appealable as a 'judgment' under cl. 15 of the Letters Patent. As B
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. 15 of the Letters Patent. c
An order which is appcalable 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. 15 of D
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 crea-
ture 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
E
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
F
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 necesarily 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 constitu-
tes a judgment within the meaning of cl. 15 of the Letters Patent to G
be appealable under the provisions thereof has come up for consi-
deration 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 H
have been expressed by diffierent Courts and by various learned
282 SUPREME COURT REPORTS [1982] I S.C.R.

A 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. Ganji v. The
Home Insurence Co. of New York (Supia) this Court referring to the
earlier decision of this Court in the case of Asrumati Debi v. Kuml'
Rupendra Deb Rajkot & Ors (supra), observed at p. 550-"Ti;_.
B Court in Asrumati Debi's case said that a judgment within the mean-
ing 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 concer-
ned. Second, the judgment must involve the determination of some
right or liability though it may not be necessary that there must be
c 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 Rangotoc. 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. 15 of the Letters Patent it has
D to be found out that tl\e order affects the merits of the action bet-
ween 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 exhaus·
tive or a comprehensive difinition of 'judgment' as contemplated in
E cl. 15 of the Letters Patent cannot be properly given and it will be
wise to remember that in the Letters Patent itself, there is no defini-
tion 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
F thereof or the same affects the question of Court's jurisdiction or the
questioU: of limitation, such an order will normally constitute
'judgment' within the meaning of cl. 15 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. 15 of the Letters
Patent to be appealable under the provisions thereof. As already
G stated, it is not necessary to decide in the present case whether the
order in question would be appealable under cl. 15 of the Letters
Patent as judgment; and I, therefore, refrain from expressing any
opinion on this question.

H
P.B. R.