An order refusing the appointment of a Receiver is not a judgment within the meaning of Clause 15 of the Letters Patent and, therefore, no appeal lies against it.

1. This is an appeal against a judgment and order of Coyajee J., on a notice of motion whereby he refused to appoint a Receiver of certain property. The defendant is the son of the plaintiff and the shares of the plaintiff and the defendant in the said property are 4 annas and 12 annas respectively. It is alleged that there are two existing mortgages for Rs. 15,000/- and Rs. 35,000/- on this property. The plaintiff says that these mortgages are bogus and the only person who can file a suit to set aside the mortgages, according to the plaintiff, is a Receiver if appointed of the said property and it is mainly in the ground that these mortgages ought to be set aside that an appointment of a Receiver was applied for. The learned Judge, although he came to the conclusion that there were circumstances in which the mortgages appeared to be suspicious, refused to appoint a Receiver but made an order for deposit of certain money per month for the share of the plaintiff in the income of the said property. It is against the order refusing the Receiver that the present appeal has been filed.

2. A preliminary objection has been raised as to the maintainability of the appeal. Now, it is clear that so far as this High Court is concerned, it has always adopted the definition of the word judgment given by Couch C. J., in the Justices of the Peace v. Oriental Gas Co., 8 Beng LR 433 (A), as a guide in determining whether there is a judgment within the meaning of Clause 15 of the Letters Patent against which an appeal lies, and the definition is :

"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".

Therefore, the essence of the matter is to determine whether the order refusing a Receiver determines some right or liability between the parties.

3. Now, it appears that the Rangoon and Allahabad High Courts have adopted a rule of practice whereby if an order is appealable under the Civil Procedure Code, it is held to be a judgment for the purpose or right of appeal under the Letters Patent. (See Arumugam Chettyar v. Kanappa Chettyar, ILR 5 Rang 99: (AIR 1927 Rang 139) (B) and Sadiq Ali v. Anwar Ali, ILR 45 All 66 at pp. 71-72: (AIR 1923 All 44 at p. 46) (C). This view, however, has never prevailed with this Court; and there arc cases where an order is not appealable under the Civil Procedure Code it has been held to be appealable, if made on the Original Side of the High Court, under the Letters Patent and vice versa. We must, therefore, proceed to apply the ratio laid down by Chief Justice Couch in the Calcutta Case which this Court has always applied for determining what is a judgment.

4. Mr. Gupte for the appellant has drawn our attention to certain cases: and the earliest of them is a decision in Miya Mahomed Haji Jan Mahomed v. Zorabi, 11 Bom LR 241 (D), in which a Division Bench of this Court held that an order directing the issue of a commission for the examination of witnesses is not a "judgment" within the meaning of Clause 15 of the Letters Patent and no appeal lies. In delivering judgment Scott C. J., cites a passage from the observations of Sir Richard Couch in Hadjee Ismail Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub, 13 Beng LR 91 (E) to the effect :

"It was held by the High Court at Madras in De Souza v. Coles, 3 Mad HCR 384 (F), that an order made under this clause of the Charter was subject to appeal. We may not agree in all the reasons which the learned Judges of that Court gave for their decision, but we do agree in the conclusion that this is an appealable order. It is of great importance to the parties. It is not a merer formal order, or an order merely regulating the procedure in the suit, but one that has the effect-of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them viz the right to sua in a particular Court, and to compel the defendan