(1.)ON 16th February, 1945 Suit No. 260 of 1945 was filed by the plaintiff, inter alia, for a declaration that the partnership business of Haji Qudabux Mohammed Ibrahim stood dissolved on and from 16th February, 1945, in the alternative, for dissolution of the said partnership, for appointment of Receiver, accounts, enquiries, injunction and other reliefs. Messrs. N. C. Bural and Pyne were the Solicitors for the plaintiff at the time of the filing of this suit. On 6th of March, 1945 by an order in the said suit, the defendant, Zahir Hasan was appointed Receiver over the said partnership business. On 29th March, 1945 another suit being Suit No. 507 of 1945 was filed by Nurul Hasan against his mother, brothers and sisters, inter alia, for partition and allotment in severally of the properties and estates of Shaik Mohammed Ibrahim, since deceased. On 22nd May, 1945 by an order in Suit No. 507 of 1945, Mr. P. K. Sen, Barrister -at- Law, was appointed receiver of the estate and effects left by Shaik Mohammed Ibrahim, since deceased, including the said business and Zahir Hasan was thus discharged from further acting as Receiver of the said partnership firm. On 30th August, 1960 Messrs Pyne and Pyne became the plaintiff's Solicitor on dissolution of Messrs N. C. Bural and Pyne. On 23rd August, 1961 in Suit No. 507 of 1945 the plaintiff obtained change from Messrs Pyne and Pyne to Messrs P. D. Himatsinka and Co. On 27th of September, 1961 when Mallick, J. was delivering judgment in Suit No. 507 of 1945, Amir Hasan submitted certain alleged terms of settlement for being recorded, thereupon the learned Judge was pleased to adjourn delivering judgment to enable the said Amir Hasan to make application in the said suit for recording the terms of settlement. On 18th of April, 1962 the application made by Amir Hasan for recording the alleged terms of settlement was dismissed. On 11th May, 1962 Mallick, J. delivered the judgment in Suit No. 507 of 1945, inter alia, declaring the share of the sons and daughters of Sheik Mohammed Ibrahim, since deceased, in the estate of the said deceased and directing a reference to ascertain the estate and effects of Sk. Mohammed Ibrahim. On 7th December, 1962 Nurul Hasan being defendant in Suit No. 260 of 1945, died. Some time thereafter the plaintiff applied for and obtained an order of substitution dated 11th March, 1963 in appeal proceeding arising out of Suit No. 507 of 1945. By 7th March, 1963, time to make application for substitution of the heirs of the deceased, defendant No. 1, expired. On 23rd March, 1963 the plaintiff instructed Messrs P. D. Himalsinka and co. to obtain change from Messrs. Pyne and Pyne. On 3rd April, 1963 Messrs P. D. Himatsinka and Co. sent a Warrant of Attorney for consent signature of Messrs Pyne and Pyne. On 5th April, 1963, Messrs P. D. Himatsinka and Co. received back the said Warrant from Messrs Pyne and Pyne with their consent signature. On 11th April, 1963 cause papers relating to the above suit were sent by Messrs Pyne and Pyne to Messrs P. D. Himatsinka and Co. On 6th of May, 1963 summons was taken out for the present application. On 27th June, 1963 an order was passed by A. N. Ray, J. setting aside the abatement, recording the death of Nurul Hasan and ordering amendment of the plaint by substitution of the names of the heirs and legal representatives of Nurul Hesan in the cause title of the plaint. The learned Judge did not give any reason in the order. On 29th April, 1964 Appeal No. 112 of 1964 was filed against the said order of A. N. Ray, J. dated 27th June, 1963. The said appeal came up for hearing before a Division Bench of this Court consisting of Sinha, J. (as his Lordship then was) and A. C. Sen, J. A preliminary point arose in the said appeal namely, whether an appeal lay against an order setting aside an abatement under Order 22, Rule 9 of the Code of Civil Procedure. In view of the conflict of decisions of this Court, Sinha, J. felt that this was a matter which should be decided by a Full Bench. In the premises under Chapter XXXIA, Rule 1 of the Original Side of this Court, the appeal has been referred to this Full Bench.
(2.)UNDER the Code of Civil Procedure read with the Limitation Act by 7th March, 1963 the suit had abated against the deceased defendant. The plaintiff had 60 days from that date to make an application for setting aside the abatement, by making out sufficient cause. The plaintiff had applied in time for setting aside the abatement in this case. It is, however, disputed that he had made out sufficient cause. That is a contention on the merits. The trial court has set aside the abatement. The short question, is, does an appeal lie from such an order ? There is no dispute that under the Code there is no appeal provided. Clause 15 of the Letters Patent, 1865 provides appeal from "judgment". The question therefore is, can the order of the trial Judge in this case be described as "judgment" in terms of Clause 15 of the Letters Patent of 1865 ?
(3.)INNUMERABLE decisions were cited at the Bar, dealing with the question whether a particular order is a "judgment" or not. It is not necessary to deal or discuss all of them here. Sometimes experience, sometimes logic has led the courts to take one or the other view. It will, however, be necessary to deal with three Supreme Court decisions, two of which deal with the meaning of the expression "judgment" in clauses of the Letters Patent of the High Court and the other with the question of the nature of the order setting aside abatement- Counsel for the appellant relied very strongly on the decision of the Supreme Court in the case of (1) Asrumati Devi v. Kumar Rupendra Deb Rajkot and others, A. I. R. 1953, S. C. 198. Then; the Supreme Court was considering the question whether an order for transfer of a suit under Clause 18 of the Letters Patent, is a "judgment" within the meaning of Clause 15. By Clause 13 of the said Letters Patent the High Court had power to remove certain suits pending in courts within its jurisdiction to the High Court. It was held by the Supreme Court that such an order neither affected the merits of the controversy between the parties in the suit itself, nor did it terminate or dispose of the suit on any ground. An order for transfer, it was further observed, could not be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground. Under Clause 12 of the Letters Patent the High Court has jurisdiction to grant leave to file suit in the High Court, if part of the cause of action arises within the jurisdiction of the High Court. The High Court has right to revoke or rescind the leave granted. " The Supreme Court held that there was a difference between an order refusing to rescind leave granted under Clause 12 of the Letters Patent and the one under Clause 13 directing the removal of a suit from one Court to another, and there was no good reason to hold that the principle applicable to one applied to the other also. The meaning of the expression 'judgment' was construed in the case of (2) Justice of the Peace for Calcutta v. Oriental Gas Company, 8 Beng. L. R. 433, and the Supreme Court in the aforesaid case of (1) Asrumati Devi v. Rupendra Deb (supra) quoted the observations of the Chief Justice Sir Richard Couch to the following effect :
"we think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or-liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it. leaving other matters to be determined. "
The Supreme Court also discussed several authorities. At page 200 of the report, the Supreme Court observed as follows :
"it cannot be said, therefore, that according to Sir Richard Couch every judicial pronouncement on a right or liability between the parties is to be regarded as a 'judgment' for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. This view which is implied in the observation of Sir Richard Couch, C. J. , quoted above, has been ready made the basis of the definition of 'judgment' by Sir Arnold White. C. J. , in the Full Bench decision of the Madras High Court to which reference has been made, vide 35 Mad. 1 (F. B. ). According to White, C. J. to find out whether an order is a 'judgment' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding the decision would be a 'judgment' but not otherwise. As this definition covers not only decisions in suit or actions but 'orders' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e. g. , granting or refusing a party's prayer for adjournment of a suit or for examination of a witness, would also come within the definition. "
This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that :
"an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of Letters Patent. "
The Supreme Court indicated that the Supreme Court was not giving an exhaustive definition of the word 'judgment'.