Desai, J. - (1.) This is an appeal from an order of our brother Sri Narain Salmi refusing to issue a certificate to the appellant for the refund of court-fee.
(2.) The appellant filed a second appeal in this Court and paid ad valorem court-fee amounting to Rs. 142/8/- on it; that was the proper amount of court-fee payable on the memo of appeal. No second appeal lay and the appeal would have been dismissed but for the request of the appellant that it might be treated as an application in revision under Section 115 C. P. C., which request was granted, on an application for revision less court-fee was payable than had been paid by the appellant; consequently he made an application purporting to be "an application under Section 151, C. P. C., in Civil Revision No. 1140, of 1953" praying for refund of the excess amount of court-fee. The application was dismissed by our learned brother who was not satisfied that any case had been made out for refund. This special appeal has been filed under Chapter VIII, Rule 5 of Rules of Court.
(3.) Under Chap. VIII, Rule 5 an appeal lies from a judgment which is not an order made in the exercise of revisional jurisdiction of one Judge. The first question that arises is whether the order of our learned brother amounted to a judgment and the next question would be if it was not an order made in the exercise of revisional jurisdiction. There is no definition of 'judgment' in the Rules but the word has teen interpreted in several decisions. In R. Wall v. J. E. Howard ILR 17 All 438 (A) Burkitt J., at page 442 observed as follows: "Now the order under appeal here certainly is not a decree nor appealable as such. It is an order by which the learned judge in the exercise of his judicial discretion refused to grant to the appellants an indulgence which they could not claim as a matter of right. It did not decide any question at issue in the case nor the rights of any of the parties nor did it lead up to or originate any order or decree. The order was complete in itself and did not require anything further to be done." At page 445 he observed: "I take it that the rule to be deduced from the above cases is that where a Court is invested with jurisdiction to do or to refuse to do a certain act the order passed in the exercise of its discretion in that matter is not a judgment or order within the meaning of Section 19 of the Judicature Act." According to these observations the order of our learned brother did not amount to a judgment. In the first place he in the exercise of his discretion refused to grant to the appellant a certificate. The appellant was not entitled to it as a matter of right and our learned brother did not decide any question of his right. The question whether he was entitled to a certificate did not arise in the revision application of which he was seized. By the order he did not decide any right of either party involved in the revision application. It was an interlocutory order and nothing more and certainly not a judgment. In Sadiq Ali v. Anwar Ali AIR 1923 All 44 (B) a Bench of this Court accepted the test laid down in T. B. Tuljaram Row v. M. K. R. V. Alagappa Chattiar ILR 35 Mad 1 (FB) (C) in the following words: "The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not compiled with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause.";