The central legal point established in the judgment is the interpretation of the term 'judgment' in Clause 10 of the Letters Patent and the applicability of Order 43, Rule 1(t), Civil P.C. in determining the maintainability of the appeal.

Mangalmurti, J—This is a Letters Patent appeal from an order of Pollock J. rejecting the appellant's application under Order 41, Rule 21., Civil P.C., read with Order 42 of that Code, to rehear the second appeal in which decree had been passed ex parte by Niyogi J.

2. It has been held in (1) L.P.A. No. 3 of 1940 of this High Court dated 27th August 1940; 1947 NLJ 26, (2) L.P.A. No. 10 of 1944 dated 4th December 1944 and (3) Kunwarlalsingh v. Shrimati Umadevi, 1945 AIR(Nag) 156 that the term 'judgment' referred to in Clause 10, Letters Patent for the Nagpur High Court means in civil cases a decree. The order appealed from does not come within the term 'decree' as defined in Section 2(2), Civil P.C., and so it is not appealable under Clause 10.

3. Even if the law had been that this order came within the term 'judgment' in Clause 10, Letters Patent, no appeal could lie in this case as leave to file a Letters Patent appeal was not obtained from Pollock J.

4. We say this because, though Clause 10 gives a right of appeal ''from the judgment of one Judge etc.,'' it limits this right by the portion which has been placed in brackets in the clause. The portion in brackets provides that notwithstanding what has been said above an appeal shall not lie without special leave in the following case, namely, when the 'judgment' has been passed ''in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction.''

5. It was argued that the order under Letters Patent appeal must itself deal with an order passed by a lower appellate Tribunal before it can be excluded under this clause. If it is an original order in the sense that it neither seeks to uphold, revise or modify an order of a lower appellate Court then it is not exempt from a Letters Patent appeal. The assumption underlying the argument is this. It is assumed that the scheme of the Letters Patent contemplates at least one appeal, or a revision, against every order. If any particular order is made appealable to a lower Court, or if it is revisable by this Court, then there can be no further appeal under the Letters Patent against the order of the High Court. But when the single Judge of the High Court is not dealing directly with an order of a lower Tribunal either in second appeal or in revision then an appeal lies against his order under the Letters Patent.

6. The problem is admittedly difficult, but in our judgment, the contention we have set out above is not well founded. The prohibition, in our opinion, applies to all orders passed in the exercise of second appellate jurisdiction. The prohibition is on all orders passed in the exercise of a certain kind of appellate jurisdiction, namely, a jurisdiction exercised ''in respect of a decree or order made in the exercise of appellate jurisdiction.'' It is our opinion that the words quoted qualify the words ''appellate jurisdiction'' used earlier in the clause and not the order sought to be attacked in the Letters Patent appeal.

7. Now there can be no doubt that Pollock J. passed the order under appeal before us in the exercise of appellate jurisdiction; further that the jurisdiction, he was exercising was second appellate jurisdiction, that is to say a jurisdiction ''in respect of a decree...made in the exercise of appellate jurisdiction.'' He obtained seisin of the case as a second appellate Court. Without the decree of the lower appellate Court which came up to this Court in second appeal the order which Pollock J. made could not have been passed. The jurisdiction he was exercising was accordingly second appellate jurisdiction.

8. Now a Court can only have one class of jurisdiction in any given matter. In the exercise of that jurisdiction (second appellate here) it can and must do many things; it can exercise many powers. It can hear counsel. It can fix dates for hearing. It can grant adjournments. It can impose adjournment costs. It can even hear witnesses and admit to evidence