The Officiating Chief Justice.- A preliminary objection is taken by Mr. G. Ramakrishna Aiyar on behalf of the respondent to the maintainability of this Letters Patent Appeal. In an appeal against a decree of the learned City Civil Judge in O.S. No. 478 of 1944, which was for recovery of damages for breach of contract Chandrasekhara Aiyar, J., directed the trial Court to take fresh evidence that may be adduced by the parties on issue 7 in the case as regards the difference in the price of the goods on the date of receipt and the date of delivery and send up its findings on the evidence so recorded.

It was contended by Mr. Ahmed Meeran for the appellants that the appeal is competent because the learned Judge had decided that the plaintiff would be entitled to damages for breach of warranty and has only called for a finding to enable him to pass a decree and that that part of the learned Judge’s order which decided his liability was a judgment within clause 15 of the Letters Patent and an appeal was therefore competent. He even went to the length of contending that if he did not come up in appeal against the order at this stage he would be precluded hereafter from challenging the correctness of the learned Judge’s finding on liability.

He relied upon the observations in Tuljaram Row v. Alagappa Chettiar1, the leading judgment of a Full Bench of this Court on the meaning of “judgment” in clause 15 of the Letters Patent. At page 14, Krishnaswami Aiyar, J., said:

“But I do not think we shall be justified in confining the term ‘judgment’ to final disposal of suits, appeals or original petitions or proceedings in execution. Preliminary or interlocutory judgments which ascertain rights and direct further inquiries which determine liabilities though further-directions are given for ascertaining the measure of those liabilities must be deemed to fall within clause 15.”

These observations which are general in nature have, in our opinion, reference only to cases where there are decrees of the nature of preliminary decrees for accounts in a suit for dissolution of partnership or in a suit for partition or a preliminary decree for sale in a mortgage suit. The observations of White, C.J., at page 7 also relied upon by the learned advocate for the appellants bring out the implication of the rule laid down by the learned Judges in that case:

“The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on 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 it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.”

Applying this test, we have no hesitation in holding that the order of Chandrasekhara Aiyar, J., calling for a finding on issue 7 is not a judgment within the meaning of clause 15 of the Letters Patent.

Two decisions of the Judicial Committee in Rahimbhoy Habibbhoy v. C.A. Turner1 and Saiyid Muzkar Hossein v. Mussamat Bodha Bibi 2 were relied upon by the learned advocate for the appellant. They deal with the construction of the word “final” which occurred in section 595 of the Civil Procedure Code then in force. In both the cases, the High Court had refused leave to appeal to Her Majesty in Council on the ground that a decree made by the High Court was not final within the meaning of that word in section 595 of the Civil Procedure Code and therefore a certificate should be refused under section 601 of the Code. Their Lordships granted special leave. Neither case has any application to the facts

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