JUDGMENT
1. This is a Letters Patent appeal against the judgment of a learned Single Judge of this Court. A preliminary point is taken that no appeal lay. The ground urged is that the order passed by the learned Single Judge did not amount to a decree, inasmuch as he sent back the case to the lower appellate Court under Order 41, Rule 23, Civil P.C. It is pointed out that the order passed was an order of remand, and under the Civil Procedure Code it did not amount to a "decree."
2. In support of this argument reliance is placed on the case of Sevak Jeranchod Bhogilal v. Dakore Temple Committee AIR 1925 PC 155, decided by their Lordships of the Privy Council. That case arose in the following circumstances: There was a temple of a public character, and a suit under Section 92, Civil P.C, was filed in respect of the management of the temple. The case went up before their Lordships of the Privy Council, and their Lordships confirmed the scheme settled in India after some alterations. One of the provisions in the scheme was that the scheme might be altered, modified or added to by an application to His Majesty's High Court of Judicature at Bombay.
3. A temple committee was appointed, and it framed a body of rules according to the powers given to it. These rules came before the District Judge of Ahmedabad for his sanction, and he made certain alterations. Thereupon certain persons, who were dissatisfied with the alterations made by the District Judge, filed an appeal against the order. The High Court held some doubt as to whether an appeal lay; but nevertheless a learned Judge of the High Court wrote and delivered a judgment in which he expressed his views as to the rules which had been sanctioned by the District Judge.
4. Then an appeal was taken to His Majesty in Council, and the Judicial Committee expressed the opinion that no appeal lay to the High Court and no appeal lay to the Privy Council. In pointing out the reason as to why no appeal lay to the Privy Council, their Lordships said as follows:
The term 'judgment' in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense.
5. Reliance is placed on this sentence, and it is urged that for an appeal to lie against the "judgment" of a Single Judge, the "judgment" must amount to a decree. In our opinion this is not a correct reading of the judgment of their Lordships of the Privy Council. Although the judgment does not point out under what clause of the Letters Patent of the Bombay High Court the remaik was based, yet it seems to us that their Lordships had in their minds Clause 39, Letters Patent of the Bombay High Court, which laid down the conditions under which an appeal could lie from a "judgment" of the Bombay High Court. It is true that Clause 15, Letters Patent, of that Court also mentions that in certain cases an appeal would lie to His Majesty; but that clause primarily mentions in what cases an appeal lies from a decision of one or more Judges of the High Court to the High Court itself, and then concludes by saying that in other cases an appeal would lie to His Majesty. It is really Clause 39 which states in detail the circumstances in which an appeal would be competent to His Majesty in Council. There, not only the words "final judgment" are used, but also the words "decree" and "order." In Clause 15 the only word used is "judgment." We therefore think that, when their Lordships of the Judicial Committee said, that, in order that an appeal might lie from a judgment of the High Court, it should amount to a decree, they had Clause 39 in their minds.
6. We have to construe Clause 10, Letters Patent of the Allahabad High Court, which is, almost verbatim, the same as Clause 15, Letters Patent of the Bombay, Madras and Calcutta High Courts. If the appeal to His Majesty in Council is not confined to a decree alone, but if an order which is final is appealable to His Majesty in Council and if the words "decree" and "order" appear in the same sentence as the word "judgment," we see no reason why we should read the word "judgment" in Clause 10, Allahabad Letters Patent or Clause 15, Letters Patents of the Bombay, Madras and Calcutta High Courts, as meaning only a "decree" and not also a final "order." On a reading of several clauses of the Letters Patent of the Allahabad High Court we have come to the conclusion that a final decision, which effectually disposes of the appeal before the High Court, should amount to a judgment, whether it amounts to a decree or not. If it does not amount to a decree, it would amount to an "order" in any case; and as we have already said, a final decree or order of the High is appealable to His Majesty under Clause 39, Letters Patents of the Bombay, Madras and Calcutta High Courts and Clause 30, Letters Patent of the Allahabad High Court, and there would be no valid reason to read the word "judgment" in Clause 10, Letters Patent of the Allahabad Court in a restricted sense.
7. We may point out that the practice of this Court has always been to entertain an appeal against an order of remand passed by a Single Judge of this Court under Order 41, Rule 23, Civil P.C. This was pointed out in the case of Ishwari Prasad v. Sheotahal Rai AIR 1926 All 669. to which one of us was a party. In that case also the decision of their Lordships of the Privy Council in Sevak Jeranchod Bhogilal v. The Dakore Temple Committee AIR 1925 PC 155 was cited, but it was distinguished. It was stated in that judgment that nothing had been shown to the Judges who decided the case which ought to induce them to differ from the existing practice. We are of opinion that nothing has been shown to us which ought to induce us to differ from the existing practice. The opinions in the other High Courts seem to support, in the main, the view taken by us. Cases decided before the decision of their Lordships of the Privy Council need not be considered. The Lahore High Court in Shibba Mal v. Rup Narain AIR 1928 Lah 904 had before them a question similar to the one before us, and they came to the conclusion that an appeal was maintainable under the Letters Patient of the Lahore High Court, Clause 10 of which is similar in terms to Clause 10, Letters Patent. We hold therefore that the appeal is maintainable. Now we have to come to the merits of the case. The facts of the case are given in the judgment of the learned Single Judge, and we need not state them again. The difficulty in the case arose from the fact that the learned District Judge added the word "automatically" when revising his judgment. The judgment, as it stands, is somewhat ambiguous. The sentence by which the learned Judge made a remand to the Court below runs as follows:
Accordingly I direct that the suit shall go back to the lower Court for retrial on condition that within one month from the day the plaintiff-appellant shall place on the record all the papers that may be necessary for measurements being earned out from a 'sahadda,' and in case that is not done, the remand order shall not take effect and the appeal shall stand dismissed automatically upon a report being made by the Court below that the order of this Court for filing papers had not been complied with.
8. It appears that some papers were filed in the Court of first instance within the period allowed but some were filed beyond the month allowed. The learned Munsif refused to take the papers and made a report that the order of the appellate Court had not been complied with. An application was also made by the plaintiff to the lower appellate Court to accept the documents he had brought. The learned Judge thought that the time given by him by his order of remand for production of documents not being a final order of the Court could not be extended by him under Section 148, Civil P.C. He also said that even if he could extend the time, he did not wish to extend it. The learned Single Judge of this Court was of opinion that the order was not final and it could have been extended it the learned District Judge was inclined to extend the period. We agree with the view taken by the learned Single Judge of this Court. What the learned District Judge meant when he said "the appeal shall stand dismissed automatically upon a report being made..." was that he was passing a sort of a stop order, and at that moment he was not inclined to grant any further time to the plaintiff. The word "automatically" and the expression "upon a report being made" are somewhat contradictory. If the final order depended on receipt of a report from the Court of first instance, it cannot be said that the order of the learned District Judge became operative, by its own force, without any report being received from the lower Court.
9. Agreeing therefore with the learned Single Judge of this Court we dismiss the appeal with costs.