V. Bhargava, J. - (1.) This Special appeal has arisen under the following circumstances. Two cross suits were instituted, one of them being the suit out of which the present special appeal has come up before us. That suit was instituted by the plaintiff respondent against the defendants appellants and the defendants respondents for recovery of a sum of Rs. 31,000. The claim arose out of a contract for supply of goods. It is not necessary to go into further details of the nature of the dispute in the suit because the special appeal has arisen out of some proceedings that took place during the pendency of the suit which has not yet been decided by the trial court. On Ist November 1954, the plaintiff respondent applied for an order under Or. XI, R. 12, C.P.C. for discovery. On that application, the court made an order that information of the application be given to the defendants and 6th November 1954 be fixed for orders. Copy of that application was actually served on the counsel for the defendants on Ist November 1954. The application came up for orders before the court on 6th November 1954 when the court ordered the defendants to comply within ten days. On 16th November 1954, when those ten days were expiring, an application was made on behalf of the defendants by their counsel for two weeks time to comply with the order. That application was allowed. In the suit itself 19th November 1954 had been fixed as the date for framing issues. That date was adjourned to 3rd January 1954 at the request of the plaintiff respondent on the basis of an application made on 18th November 1954. Then on Ist December 1954 the application for discovery came up for fresh orders because the defendants had not given discovery upto that date. On that date, the counsel for the defendants made a statement that he had heard nothing from the defendants or from the senior counsel and hence no steps could be taken. On the 2nd December 1954, the plaintiff respondent moved an application praying that the defence of the defendants be struck off under Order XI, R. 21 of the Code of Civil Procedure. Copy of this application was given to the same counsel for the defendants who had made the statement on 1st December 1954 mentioned above. This application came up for orders before the court on 3rd December 1954, though it does not appear from the record that 3rd December 1954 was fixed as the date for passing orders on this application. On that date, the court allowed the application and struck off the defence and further directed that the suit was to proceed ex parte against the defendants. Then 6th January 1955 was fixed for hearing of the case. The defendants moved an application for review of the order dated the 3rd of December 1954 on 3rd January 1955. That application was rejected on 7th February 1955. The defendants also filed an appeal to this Court against the order striking out the defence and directing the suit to proceed ex parte which had been passed on 3rd December 1954. That appeal came up before a learned single Judge of this Court and the learned single Judge dismissed that appeal. The present special appeal is directed against the order of the learned single Judge.
(2.) When this special appeal was heard by us, a preliminary objection was raised on behalf of the respondent that this special appeal was incompetent as it was directed against an order of a learned single Judge which did not amount to a 'judgment' within the meaning of that word as used in Cl. 10 of the Letters Patent of the Allahabad High Court. The appeal is no doubt filed under Chap. VIII, R. 5 of Rules of Court, but that provision only reproduces the right of appeal granted by Cl. 10 of the letters patent of the Allahabad High Court which, though abolished, are still available to be used for purposes of interpretation in view of the United Provinces High Courts (Amalgamation) Order, 1948.
(3.) Mr. Misra learned counsel for the respondent relied, for the purposes of the scope of the word 'judgment' as used in Cl. 10 of the Letters Patent of the Allahabad High Court, mainly on the view expressed in two decisions of the Supreme Court contained in Asrutnati Debi v. Rupendra Deb, A.I.R. 1953 S.C. 198 and State v. Dr. V.A. Maharaj, 1962 A.L.J. 819 and on the views expressed by this Court in Vishnu Pratap v. Revati Devi, A.I.R. 1953 Allahabad 647 and S.G. Beads Factory v. Shri Dhar, A.I.R. 1960 Allahabad 692 = 1960 A.L.J. 387 . He considered it unnecessary to make reference to decisions of other High Courts such as the Calcutta, Nagpur and Madras High Courts which have been noticed either in the decisions of this Court or the decisions of the Supreme Court mentioned above. On an examination of these cases, we find that, so far as the Supreme Court is concerned, that Court has not yet given its decision as to the actual scope of the word 'judgment' as used in Cl. 10 of the Letters Patent of the Allahabad High Court or Cl. 15 of the Letters Patent of the Bombay, Calcutta and Madras High Courts. The Supreme Court in the two cases cited above took notice of the interpretation that had been placed on this word 'judgment' by a Full Bench of the Madras High Court in Tuljaranz v. Alagappa, I.L.R. 35 Mad. 1 and the interpretation placed on that word by the Calcutta High Court in The Justices of the PRace for Calcutta v. The Oriental Gas Co., (1872) 8 Being. L.R. 433 and Hadjee Ismael v. Hadjee Mahommad, (1874) 13 Beng. L.R. 91 and by the Nagpur High Court in Manohar v. Baliram, I.L.R. 1952 Nag. 471 . When noticing these views their Lordships of the Supreme Court, in both the decisions, held that the Full Bench of the Madras High Court in the case mentioned above had attributed a wider meaning to the word 'judgment' while a narrower meaning had been attributed to it by the Calcutta and the Nagpur High Courts. In both the cases, their Lordships, on the facts of those cases, were of the view that the decisions arrived at by their Lordships followed both from the views expressed by the Madras High Court, and the Calcutta and Nagpur High Courts. In the case of Asrunati Debi v. Rupendra Deb, A.I.R. 1953 S.C. 198 their Lordships held that whether the meaning of the word 'judgment' accepted by the Madras High Court or that accepted by the Calcutta High Court be applied, in either case, the order which was in dispute in the case before them did not amount to a judgment. On the other hand in the subsequent case of State v. Dr. V.A. Maharaj, (1874) 13 Beng. L.R. 91 : 1962 A.L.J. 819 their Lordships held that the particular order in question in that case was a judgment, whether the meaning of that word accepted by the High Court of Madras is applied or that accepted by the Nagpur and the Calcutta High Courts is applied. In these circumstances their Lordships of the Supreme Court refrained from resolving the difference between the views expressed by these High Courts. It has appeared to us that, so far as we are concerned since we can get no guidance from the decisions of the Supreme Court as to which of the two views is to be preferred, we have to fall back upon decisions of our own Court, and on this point we find that we have to follow the majority view expressed in the Full Bench decision in S. G. Beads Factory v. Shri Dhar, A.I.R. 1960 Allahabad 692 : 1960 A.L.J. 387 . In that case, the majority judgment was delivered by Mootham, C.J. with whom Dayal, J. fully concurred. After discussing the Supreme Court decision in the case of Asrumati Debi v. Rupendra Deb, (1874) 13 Beng. L.R. 91 : 1962 A.L.J. 819 and after taking notice of the various other decisions Mootham, C. J., in the last paragraph of his judgment, expressed the view that, on the wider meaning given to the word 'judgment', a judgment deciding an appeal from an order allowing or refusing to grant an interim injunction order during the pendency of a suit must be held to be a judgment within the meaning of that word as used in Cl. 10 of the Letters Patent of the Allahabad High Court. At the same time he said: "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." Thus Mootham, C.J. in his judgment indicated that this Court was accepting the wider meaning of the word 'judgment' as laid down by the Madras High Court in the case of Tuliaram v. Alagappa at least in so far as the decision of single judge in appellate jurisdiction is concerned, and we consider that this being the view of a Full Bench of this Court it is not open to us to differ from it.;