An appeal against a judgment delivered by a single judge under clause 15 of the Letters Patent is maintainable only against the judgment itself and not against the order drawn up in terms of Rules 1 and 2 of Chapter XVI of the High Court Rules.

( 1 ) THE two appellants, namely commissioner of Gift Tax, and Gift Tax Officer, have come up in appeal against a judgment delivered on 7th April, 1993 in matter No. 539 of 1988 by a learned single Judge of this court regarding the validity of a notice issued under section 16 of the Gift Tax Act, 1958. It appears that respondent Bireswar Sarkar feeling aggrieved of the issuance of a notice under section 16 of the Gift Tax Act for the assessment year 1982-83 moved a writ application under Article 226 of the Constitution of India in this court. Vide judgment dated 7th April, 1993 a learned single judge of this court by allowing the writ application of respondent quashed and set aside the impugned notice in the writ application. Even though the judgment under appeal was passed on 7th April, 1993, the present appeal was filed on 11. 09. 95. As per the noting and report submitted by the Superintendent, appeals section (Original Side) of this court, the appeal is barred by limitation by 856 days.

( 2 ) THE contention of the appellant is that the appeal is not barred by limitation because till date no order has been drawn-up as is required in terms of Rules 1 and 2 contained in Ch. XVI of the High Court Rules dealing with Original Side. It is cantented that unless the order has been drawn up in terms of Rules 1 and 2 (supra), appeal cannot be filed because the appeal is to be filed against the order so drawn up and the copy of the order is required to accompany the memorandum of appeal. The point for our determination therefore in this appeal is as to whether an appeal against a judgment delivered by a learned single Judge of this court under clause 15 of the Letters Patent is maintainable only against the judgment itself, and not the order that may be required to be drawn up in terms of Rules 1 and 2 (supra) and thus is such an appeal maintainable without the memorandum of appeal being accompanied by a copy of such an order.

( 3 ) WE have heard learned counsel appearing for the parties at length.

( 4 ) RULES 1 and 2 read as under: 1. Judgment how pronounced and minuted: decree or order in accordance therewith. The judgment shall be pronounced in open court, and a minute thereof made by the principal officer in attendance in court: and the decree or order shall be drawn up in accordance therewith. Where the judgment pronounced has been reduced into writing the decree or order shall not be filed before such judgment is filed. 2. Oral judgment how taken down: Revision thereof: official note. Where judgment is given by the court or a Judge orally, a note thereof in writing, or in shorthand, shall be taken by the principal officer in attendance. The note so taken shall, unless the judge shall otherwise direct, be written out fully, and submitted to the Judge for revision. A note so submitted, when revised by the Judge, shall be signed by him and may be filed, as the judgment of the court, but if returned by the Judge unsigned, it may be filed as the official note of the judgment. After it has been so filled the parties shall be entitled to obtain office copies in the usual matter. " clause 15 of the letters patent reads as under. "15. Appeal from the courts of original jurisdiction to the High Court in its Appellate jurisdiction.-And we do further ordain, that an appeal shall lie to the said High Court of judicature at Fort William in Bengal from the judgment (not being judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107j of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any division cou