JUDGMENT

Baguley, J - The appellant, K. Alamuthuvandayar, was sued in Civil Regular No. 554 of 1933 on the Original. Side of this Court on a promissory note. In the suit certain declarations also were asked for. The suit was decreed ex parte against him, and he applied to have the ex parte decree set aside in order that he may defend the case on its merits. An order was passed directing that the ex parte decree should be set aside on certain terms, viz., that the defendants should pay into Court within ten days the sum of Rs. 1,970 plus certain costs. Before the ten days had completely elapsed the present appeal was filed against the order. Up to the present time, it would appear, no order dismissing the application for re-opening has been passed. In our opinion no-appeal lies from a conditional order of this kind. The appeal must be under Clause 13, Letters Patent, and the leading case with regard to what is a "judgment" and therefore appealable is Chidambaram Chettyar v. N.A. Chettyar Firm A.I.R. 1929 Rang. 41. The head-note of this ease is as follows:

The word judgment in Clause 13, Letters Patent, is intended to cover an order as well as a decree, but the effect of the adjudication must he such as 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 proceeding. If it has this effect, the adjudication is a judgment; otherwise not.

2. So far as we can see this head-note is incorrect. In the body of the judgment, it is true, there does appear a passing reference on p. 710 to a dictum of the Chief Justice of the Madras High Court in Tuljaram Row v. Alagappa Chettiar (1912) 35 Mad. 1 to the effect that the test is whether or not the effect of the adjudication

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;

and it is stated that this view was adopted by the late Chief Justice of this Court in 1924. The particular case of this Court to which reference is made appears to be Yeo Eng Byan v. Beng Seng & Co. A.I.R. 1925 Rang. 43; but a reference to that case will show that Robinson, C.J., who wrote the leading judgment, after referring to other eases, including Tuljaram Row's case (1912) 35 Mad. 1, says:

With these dicta I am in general agreement. I agree that a decision which affects the merits of the question between the parties by determining some right or liability may rightly be held to be a 'judgment'; and I think that an order which merely paves the way for the determination of the question between the parties cannot be considered to be a judgment.

3. The word "and" is a little bit unfortunate, and it seems that "but" would have marked better the spot at which the learned Chief Justice departed from his general agreement with the view taken by the Madras High Court, and it is, no doubt, this unfortunate word which has led to the mistake in the head-note of Chidambaram Chettyar's case A.I.R. 1929 Rang. 41. In this same report Pratt, C.J., points out in his judgment that Robinson, C.J., in Yeo Eng Byan v. Beng Seng & Co. A.I.R. 1925 Rang 43, held that an order which merely paves the way for the determination of the question between the parties cannot be considered to be a ' judgment"; and it seems clear that there is nothing in this Pull Bench case which dissents from what was held in Yeo Eng Byan's case A.I.R. 1925 Rang 43. In the present case it is quite clear that the order now appealed against was purely ancillary, and finally determined no; right as between the parties. An application was made for the ex parte decree to be set aside. So far that application has neither been allowed nor rejected, and the position is very much the same as was dealt with at length by one of was Ramaswamy v. N.A. Chettyar Firm A.I.R. 1933 Rang. 63. Unde