V. Bhargava, J. - (1.) We have heard learned counsel on these two special appeals which are both directed against two similar orders made by a learned Single Judge in connection with proceedings pending before him under clause 12 of the Letters Patent of the Allahabad High Court read with the U.P. High Court (Amalgamation) Order, 1948. The first of the two appeals, no. 261 of 1963, is directed against an order dated the 9th of May, 1963, directing the appellant to produce Alka, the minor child, before the Court on the 22nd of May, 1963. The other appeal no. 351 of 1963 is directed against the subsequent order dated the 25th of July, 1963, directing the appellant to produce Alka, the minor child, before the Court on Wednesday, the 14th of August, 1963. The two orders in appeal were both for the production of the minor in Court and were to be complied with on the two dates mentioned in those orders, viz. on the 22nd of May, 1963, and the 14th of August, 1963. The dates, on which the minor was to be produced, have already passed and on each of those occasions the production of the minor did not take place because of interim orders made in connection with these appeals by the appellate bench. Prima facie therefore, it would appear that both the appeals have become infructuous because they are directed against orders which could no longer be carried out. It was, however, felt that dismissal of these two appeals on such a ground will result in a vicious circle coming into existence. If the appeals are dismissed as infructuous, the learned Single Judge seized of the proceedings under clause 12 of the Letters Patent would naturally pass fresh orders on the lines of his previous orders questioned in appeal and then again the appellant may file an appeal and obtain a stay order and the appeal may thereafter be dismissed after the date of the production of the minor has expired. In the circumstances, we considered that it was a fit case where the appeals should be heard and decided as if they had not become infructuous; so that the question whether the appellate court should interfere in these appeals or, in the alternative, whether such orders should or should not be made by the learned Single Judge should be decided by the Appellate Bench.
(2.) When these appeals came up for hearing, a preliminary objection was taken on behalf of the respondent that these appeals were not maintainable as the right of appeal from a decision of a Single Judge to a division bench can only be exercised in respect of a "judgment" of a Single Judge within the meaning of that word as used in clause 10 of the Letters Patent of the Allahabad High Court and Rule 5 of Chapter VIII of the Rules of Court. The word in both the provisions is used in the same meaning. In fact, the language of Rule 5 of Chapter VIII of the Rules of Court is based on the provisions of clause 10 of the Letters Patent.
(3.) The question of the scope of the word as used in clause 10 of the Letters Patent of the Allahabad High Court or in similar provisions contained in the Letters Patents of the various High Courts has been the subject of consideration by various High Courts and also by the Supreme Court. Very recently a division Bench of this Court had occasion to consider the scope of the word in the case of Jyoti Prasad Kishan Lal v. Sunder Dass Shiv Charan Das, 1963 A.L.J. 505 . One of us was a member of that bench. The bench considered the meaning given to the word 'judgment' in its wider scope by the Madras High Court as well as in the narrower scope given to it by the decisions of the Calcutta High Court. The bench also considered the effect of the various decisions of this Court including the decision by a Full Bench in Standard Glass Beads Factory v. Shri Dhar, A.I.R. 1960 Alld. 692 = 1960 A.L.J. 387 (F.B.) . On a consideration of all these cases the view taken was that an order amounts to a judgment under clause 10 of the Letters Patent of the Allahabad High Court if at least one of the following two requirements is satisfied:- 1. The first as that there is an adjudication of the rights of the parties though that adjudication may be a final adjudication or an interim adjudication. 2. The second is that an order is a judgment if it finally terminates any proceeding pending before the Court which made that order. It was thus held that, if an appeal is decided finally on an order made by a learned Single Judge of this Court, that order would be a judgment. In the present case, the two orders in question do not satisfy these tests at all. The orders directing the production of the minor in Court did not terminate any proceeding pending before the learned Single Judge. The proceeding before the learned Single Judge was for making orders as to guardianship of the minor under clause 12 of the Letters Patent of the Allahabad High Court and for making appropriate directions for the custody of the minor in that connection. These two orders under appeal neither contained any order giving guardianship to one person or the other, nor did these orders direct custody of the minor child to be given to any particular person. The orders merely were to the appellant to produce the minor in Court. The minor is already in the custody of the appellant, and even when the appellant produces the minor in Court, the minor will continue to be in the custody of the appellant. When, therefore, this order is even fully complied with by the appellant, the appellant will still have the custody of the minor, so that no rights of the appellant are in any way affected by it. This order is not comparable with an order of appointment of a receiver or an order of injunction by which the rights of the person in possession of property are affected and certain limitations come into existence over the exercise of these rights.;