S.K.Mukherjea, J. - (1.) This is an application for grant of a certificate under Articles 133 (1) (a) and 133 (1) (c) of the Constitution for appeal to the Supreme Court. The order of the appellate Court is an order of dismissal of an appeal from an order made by a learned single Judge by which his Lordship corrected an earlier order he had made. The order as corrected reads : "Leave is granted to the petitioner to withdraw this suit with liberty to file a fresh suit on the same cause of action .............. and it is further ordered that the plaintiff company do pay to the defendant company its costs of and incidental to this application assessed at Rs. 170/- and this Court doth certify that this is a fit application for employment of advocate."
(2.) As by the order leave was given to withdraw the suit and nothing further remained to be done by the Court in the matter, we are of opinion that the order is a final order.
(3.) The next question which arises is whether the order and judgment of the appellate Court is an order and judgment of affirmance. The order is an order of dismissal, of the appeal on merits. In our opinion, by the order of dismissal, the decision of the learned single Judge is necessarily affirmed within the meaning of Article 133 (1) of the Constitution. In T. Rajaram v. Radhakrishnayya, the Supreme Court held that in determining the question as to whether the appellate decree passed by the High Court affirmed the decision of the trial Court, the appellate decree must be considered as a whole in relation to the decision of the trial Court similarly considered as a whole. That is the proper approach in applying the test of affirmance. If there is a variation made in the appellate decree in the decision of the trial Court it is not a decree of affirmance and this is not affected cither by the extent of the variation made or by the fact that the variation is made in favour of the intending appellant and not against him. The term 'decision' in the context of Section 596 of the old Civil Procedure Code, a provision which is in pari materia with Article 133, was construed by the Privy Council in Rajah Tasadduq Rasul Khan v. Manik Chand, (1903) 30 Ind App 35 (PC). Lord Dayey delivering the judgment of the Court said: "There is no definition of the word 'decision' in the Civil Procedure Code, but there is a definition of the word 'decree'. It says 'decree' means the formal expression of an adjudication upon any right claimed or defence set up in Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal." Then 'judgment' is defined to mean 'the statement given by the Judge of the grounds of a decree or order'. Therefore, their Lordships have two things: they have a decree which decides the suit, and they have the word 'Judgment', meaning the statement of the grounds upon which the learned Judge or the Court proceeds to make the decree.;