- (1.) The appeal is directed against that part of the order passed on an application under Chapter XIIIA of the Rules on the Original Side of this Court by which unconditional leave has been granted to the defendant to contest the claim. A partial decree has been passed following the same judgment.
(2.) An appeal against a judgment granting unconditional leave to defend the entirety or even a part of the claim is not appellable. Such an order would not fall within the definition of the word 'judgment' as used in Clause 15 of the Letters Patent that governs intra-court appeals on the Original Side of this Court.
(3.) The appellant has referred to a judgment reported at (1981)4 SCC 8 ( Shah Babulal Khimji vs. Jayaben D. Kania ) and placed paragraphs 80 to 84 therefrom and paragraph 120. The appellant says that the strict construction of the word 'judgment' as in the judgment reported at 8 BLR 433 (The Justices of the Peace for Calcutta), did not appeal to the Supreme Court since the following observation, which constitutes the ratio decidendi in The Justices of the Peace case, does not include matters of moment: "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. " ;