Manbhari Bai (Deceased) through her Lrs. vs Sat Narain and Others

S.N. Shankear, J.

(1) This is an appeal under clause 10 of the Letters Patent against the order of the learned single Judge accepting the application of the respondents for bein substituted in place of the Official Receiver who was the only appellant in R.F.A. 131-D of 1966.

(2) Sometimes in February, 1963 the respondents, Sat Narain, Savitri Devi and Ram Kumar, moved an application under sections 9(1) and 13(2) of the Provincial Insolvency Act before the Insolvency Court praying "that one Bura Mal be declared an insolvent and a Receiver of his estate be appointed. In this petition, the Insolvency Court appointed Official Receiver as the Interim Receiver of the estate of Bura Mal. In April, 1966 one Ram Murti Devi, wife of a son of the brother of Bura Mal filed a suit for partition in respect of the properties comprised in .the estate of Bura Mal against Manbhari Bai, widow of a real brother of Bura Mal, and Bura Mal. The Official Receiver was also imp leaded as a defendant in this suit. Ram Murti Devi alleged that she owned the properties along with Manbhari Bai and Bura Mal. The Official Receiver contested the suit and took the plea, amongst others, that it was collusive. On April 5, 1966, however, the learned trial court decreed the suit. Against this decree, the Official Receiver filed an appeal to this Court (being Rfa 131-D of 3966) after obtaining permission of the Insolvency Judge. Thereafter, it appears that the learned District Judge on appeal set aside the order of the Insolvency Court appointing the Official Receiver as the Interim Receiver of the estate of Bura Mal. The respondents thereupon applied under Order l rule 10 and Section 151 of the CPC for being imp leaded as appellants in place of the Official Receiver with the allegations that they had subsisting interest in the subject-matter of the appeal as it was on their application that the Insolvency Court had appointed Official Receiver as the interim Receiver of the estate of Bura Mal and after the vacation of the order appointing Interim Receiver they were entitled to be substituted in place of the Official Receiver. The learned single Judge by the impugned order accepted this application and held that the respondents were entitled to prosecute the appeal and directed them to be substituted in place of the Official Receiver. As one of the respondents to the appeal, Ram Murti Devi, had in the meantime died, the substituted appellants were also directed to move an application for impleading the legal representatives of the deceased respondent.

(3) The respondents have raised a preliminary objection that this appeal is not competent under clause 10 of the Letters Patent as this clause provides for appeals from a "judgment" and the order under appeal is not a "judgment". The submission, in our view, has substance.

(4) Clause 10 of the Letters Patent provides for appeals from a "judgment" of the nature mentioned in the clause. The expression "judgment" is not defined in the Letters Patent but it has always been construed to mean a final adjudication of the controversy so as to put an end to the suit or proceedings in which it is passed. This question came up before a Full Bench of the Madras High Court in T. v. Tuljaram Row v. M. K. R. v. Alagappa Cheffiar 35 I.L.R.M. 1,. With reference to clause 15 of the Letters Patent (Madras), White C. J. said:

AN adjudication is a judgment within the meaning of the clause if its effect whatever its form may be and whatever may be the nature of the application in 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 not complied with, is to put an end to the suit or proceeding. It is not necessary that the decision must affect The merits by determining some right or liability. An adjudication based on a refusal to exercise discretion, is appealable if the effect of the adjudication is to dispose of the suit so far as the court making the adjudication is eon erned:

(5) This dictum has ail through been followed not only by the Madras High Court but the other High Courts also .In Union of India (UOI) Vs. Khetra Mohan Banerjee, . Division Bench of the Calcutta High Court in the context of clause 15 of the Letters Patent (which corresponds to clause 10 of the Letters Patent before us) observed:

This only where ail the cardinal issues in the particular matter being considered by the Court are being determined that a judgment can be said to have come into existence; where along with the determination of these cardinal issues the subsidiary issues are also being determined so that there is a final adjudication of any matter in issue, the judgment is a final judgment.

(6) A Full Bench of Rangoon High Court in Dayabhai Jiwandass and others v. A.M.M. Murugappa Chettiar AIR 1935 Rang 267 also took the same view. In Khatizan v. Sonairam Daulatram AIR 1920 Cal 797 , Division Bench of the Calcutta High Court held that an order made by learned single Judge transferring a suit from Calcutta Small Cause Court to High Court for trial was not a judgment within the meaning of clause 15 of the Letters Patent and consequently not appealable. For arriving at this conclusion, reliance was placed on the following observations of Sir Richard Couch, C. J. in the case of the Justices of the Peace for Calcutta Vs. The Oriental Gas. (17 Wr 364) :

WE think that "judgment" in Cl. 15 means a decision which affects the merits of the question between the parties determining some right or liability. lt 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.

(7) In Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , the Supreme Court endorsed the view taken by the Rangoon High Court as well as Calcutta High Court in the cases of Dayabhui Jiwcindass and others v. A.M.M. Murugappa Chettiar and Khatizan -v. Sonairam Daulatram (supra) and said:

...the order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground....

(8) In the following observations the Full Bench of this Court in Beguin Aftab Zamani v. Shri Lai Chaud Khanna AIR 1969 Delhi 85 also reiterated the same position:

THE Letters Patent, when providing for appeals from judgments, in our view, contemplate judgments which have both the effect of a decree as defined in the Code and of such order as may affect the merits of a controversy between the parties by determining some disputed right or liability. A judgment may thus be either final or preliminary or interlocutory .In order to decide whether an adjudication should be treated as a "judgment" within the meaning of clause 10 of the Letters Patent, we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its effect. whatever, its form and whatever the nature of the proceeding in which it is made, is to put an end to the suit or proceeding, or if its effect, if not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably a "judgment" within the meaning of this clause. Other decisions or determinations adjudicating upon a disputed controversy on the merits in a suit or proceeding may also appropriately fall within the contemplation of the word "judgment".. .. .. .. .. .. .. .. .. .. Each case would thus depend on its own peculiar facts and circumstances.

(9) This being the law on the subject, we are clear in our mind that the order under appeal accepting the respondents application to be substituted in place of the Official Receiver ,in the facts of this case, is not a "judgment" within the meaning of clause 10 of Letters Patent (Lahore). The order does not at ail deal with or decide the merits of the controversy in appeal, nor does it determine any disputed right or liability. Ail that it purports to do is to place the implicated respondents, so to say, on the road to a judgment. So long, Therefore, as there is no final adjudication or determination in form or in effect, clause 10 of the Letters Patent is not attracted and appeal will not lie.

(10) It was urged on behalf of the appellants that the Official Receiver was the sole appellant in this appeal and after the vacation of the order of his appointment there was no appellant left and so this appeal had to be dismissed. The impugned order, Therefore, substituting the respondents in place of the Official Receiver amounted to a decision against the appellant. The argument has no merit. The learned single Judge has not decided as to the rights of the respondents in the properties in suit. The order permitting them to be substituted in place of the Official Receiver is without prejudice to the rights of the parties on the merits of the controversy. Reference in this context may be made to R.N. Selvam Mudaliar and Others Vs. P.A. Raju Mudaliar and Another, where Division Bench following the rule in Tuljaram''s case (35 Indian Law Reports Madras l) in the case of an order adding a party to a suit held that such an order was not a judgment within the meaning of Clause 15 of the Letters Patent (Madras) as it did not put an end to the suit but was a step towards a final adjudication and at best conferred a right to be heard and nothing more.

(11) For these reasons, we are of the view that the present appeal under clause 10 of the Letters Patent (Lahore) is not maintainable and has to be dismissed as such. Ordered accordingly. No order as to costs.