Maintainability of appeal under clause 15 of Letter Patent against order of stay of trial.

The question referred to the Full Bench is as follows:

"Is an order made under section 10, Civil procedure Code or any other provision of law for the stay of trial of a suit a "judgment" within the meaning of that term in clause 15 of the Letters Patent?" The scope of the reference is therefore restricted and circumscribed in character and we are relieved of the task of attempting to define the term "judgment" in clause 15 of the Letters Patent in all its aspects. An exhaustive definition of that word has not been successfully laid down in any decision in India during the last nearly a century though Hidayatullah, J., in Manohar v. Baliram1, has brought out a definition containing the essential ingredients of a ‘judgment’ derivable from various decisions.

Clause 15 of the Letters Patent with which we are now concerned is dated 28th December, 1865 and has undergone a few amendments which are unnecessary for consideration in the present context. Prior to that, there was an earlier Letters Patent dated 14th May, 1862 which by clauses 14 and 15 provided that the High Court should have appellate jurisdiction which was till then exercised by the Sudder Adawlut. It is a matter of common knowledge that the first Letters Patent dated 14th May, 1862 was issued after the Charter Act of 1861. 24 and 25 Queen Victoria, Chapter 104, was enacted which by section 8 provided for the abolition of the Supreme Court and Sudder Adawlut Courts and constituted a High Court having all the jurisdiction and powers of the Courts abolished. The Letters Patent of 1862 was revoked by the one issued on the 28th December, 1865 which has continued till the present day with minor alterations and amendments. The Civil Procedure Code which was prevalent at the time both the Letters Patent were issued was Act (VIII of 1859) which did not contain any definition of the word judgment. Sections 183 to 198 in Chapter IV of that Act dealt with judgments and decrees but there was no attempt made to give a precise definition of that Term in the whole of the enactment. We have therefore to take it that the draftsmen of the Letters Patent of 1865, having before them the interpretation given to the word ‘judgment’ in England at that time, must have intended to give that word the same connotation as was legally understood in England. Under section 19 of the Judicature Act of 1873 there was an appeal provided from a judgment or order of one Judge of the High Court to the Court of Appeal. But even in that Judicature Act we do not find any definition of the term. Under section 27(1) of Part IX, Division 1 of the Judicature Act of 1895, it was provided that an appeal lay to the Court of Appeal from all orders and judgments of the High Court with certain exceptions which are enumerated thereof. Appeals were absolutely prohibited in certain cases and no appeal lay in other cases, whereas appeals lay with the leave of the Court of first instance or of the Court of Appeal in other instances. The reason why we do not find any exhaustive definition of the word ‘judgment’ in the English Statutes is due to the fact that any decision which was sought to be appealed against would come either within the meaning of the word ‘judgment’ or ‘order ‘, and in that case it was unnecessary for the Court to find out whether the decision appealed against would come within the category of either the one or the other.

How the word “judgment” was understood in England can be seen from observations of the various English Judges in a number of cases referred to by Page, C.J., in Dayabhai Jiwandas v. A.M.M. Murugappa Chettiar2. The learned Chief Justice refers to Ex parte Chinery3, Onslow v. Commissioners of Inland Revenue4, and various other cases. He also referred to Ex parte Moore5 In re: Riddell ex parte Earl of Straithmore6, and came to the conclusion that the word “judgment” in clause 13 of the Letters Patent of the Rangoon High Court (the equivalent to clause 15 of ou