JUDGMENT <NAME>, C.J.

1. The question we have to determine in this ease turns on the meaning of the word 'judgment' in Clause 15 of the Letters Patent, I find it impossible to reconcile the decisions on the point.

2. I do not think the word 'judgment' is used in contradistinction to the worlds 'sentence' or 'order' which immediately follow it. The words "not being a sentence or order passed or made in any criminal trial," as it seems to me, were introduced in order to exclude all criminal proceedings from the operation of the section and that it is not to be inferred from the introduction of these words that the legislature intended that the word ' judgment should include all orders in civil proceedings.

3. Further, I am not prepared to infer, from the fact that in Sections 39 and 40 of the Letters Patent a distinction is drawn between final judgments, decrees or orders, and interlocutory judgments, decrees or orders, that the word ' judgment ' in Section 15 is to be deemed to include any order in any interlocutory proceeding.

4. 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 <ORG> 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.

5. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) --e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a 'judgment' within the meaning of the clause,

6. Speaking generally I think the word 'judgment' means any "final order, decree or judgment" within the meaning of those words as used in Section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of Section 15 of the Letters Patent, On the other hand I am not prepared to say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 and in Sonbai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398, it must be a decision which effects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding,

7. As regards the authorities I will deal with the <NAME> cases first. With all respect I think the definition of judgment given by <NAME>, J., in <NAME> v. <NAME> (1868) 3 M.H.C.R. 384 as "any decision or determination affecting the rights or the interest of any suitor or applicant" is too wide, and I cannot accede to the proposition that it is "impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from" I agree, however, with the actual decision in the ease which seems to me to satisfy the test which I have ventured to lay down.

8. The order in <NAME> v. Administrator-General (1876) I.L.R. 1 Mad. 148 was an order under the Administrator-General's Act giving the Administrator-General commission at a certain rate. I think the order may be regarded as an order which put an end to a proceeding in which the Administrator General claimed commission at a certain rate, and was therefore appealable.

9. I am unable to agree with the decision in <CITATION> . (1891) I.L.R. 14 Mad. 88 that an order fixing a date for the hearing of a suit is appealable. This case does not appear to have been cited with approval in this Court, and was expressly disapproved in <CITATION> (1901) I.L.R. 24 Mad. 358 and in <NAME> v. <NAME> (1901) 5 Calc. W.N. 781.

10. The decisions in <CITATION> (1901) I.L.R. 21 Mad. 252 (an order dismissing an application by the assignee of a plaintiff to be brought on the record held appealable and in <NAME> v. <NAME> (1902) I.L.R. 25 Mad. 654 (an order dismissing a petition to receive a sum of money as security for coats of an appeal held appealable) in my opinion satisfy the test I have suggested. I should be prepared to hold that an appeal lay from an order refusing a stay of execution (the application for a stay being an ancillary proceeding) though a contrary view was taken in <CITATION> (1901) I.L.R. 24 Mad. 358.

11. With all respect I find myself unable to agree with the decisions in <CITATION> (1905) I.L.R. 28 Mad. 28 and in Maruthamuthu Pillai v. <NAME> (1907) I.L.R. 30 Mad. 143, that an order for evidence to be taken on commission or an order refusing a commission is an appealable order. As regards the latter case I entirely agree with the observation of the learned Judges that the fact that the making of the order was a matter of discretion does not affect the appealability of the order. This fact may be a good reason for refusing to exercise the appellate jurisdiction, but as it seems to me, it is no reason for holding that the appellate jurisdiction does not exist.

12. I am unable to agree with what I understand to be the principle of the decision in <NAME> v. <NAME> (1903) I.L.R. 26 Mad. 437 and I think that the adjudication based on a refusal to exercise discretion, if the effect of the adjudication is to dispose of the suit so far as the <ORG> making the adjudication is concerned, is appealable. This being my view I must hold though I do so with considerable reluctance that the decision in <NAME> v. <NAME> (1904) I.L.R. 27 Mad. 432, is not, in my opinion, good law.

13. As regards the Calcutta cases I have already referred to <NAME> for Calcutta v. <ORG> (1872) 8 Beng. L.R. 433, in connection with the grounds of the decision in that case. As regards the actual decision I should feel some difficulty in following it and I should be disposed to hold such an order as appealable. In <NAME> v. <NAME> (1683) I.L.R. 9 Calc. 482 (P.C.), <ORG> held, on the facts of that case, that an order refusing to transmit for execution an order of <ORG> was appealable. Their Lordships do not discuss the general question of the meaning of the word "Judgment."

14. I am of opinion that an appeal lies from a refusal to confirm an award <NAME> v. <NAME> (1879) I.L.R. 4 Calc. 231 or a refusal to set aside an award [Toolsee Money Dassee v. Sudevi Dassee (1899) I.L.R. 26 Calc. 861]

15. I think an appeal would lie from an order refusing to extend the time for giving security for costs, as the effect of the order would be to put an end to the appeal. <CITATION> (1897) I.L.R. 18 Calc. 183, <ORG> took a different view.] In <NAME> v. <NAME> (1908) I.L.R. 85 Calc. 1096, an order was made setting aside a judgment and a decree and ordering a remand, and this order was held to be appealable. I agree. The learned Judges observe, "we think, it is a 'judgment' because it disposes of the suit."

16. As regards the Bombay authorities I may refer to <NAME> v. <NAME> (1905) I.L.R. 20 Bom. 249 where it was held "that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file," Here the adjudication asked for, if made would have disposed of the suit. So also would an order made on an application to revoke a submission to arbitration. I think such an order is appealable, See <ORG> v. <NAME> (1910) I.L.R. 34 Bom. 1.

17. I agree with the view expressed by <NAME>, <NAME>, in Ebtahim V. Fuckhrunnissa Begum (1879) I.L.R. 4 Calc. 531, on the point which has been referred to us and I think our answer to the question referred should be in the negative.

<NAME>, J.

18. In this case the defendant in Original Suit No. 117 of 1909 on the file of <ORG> (Original Side) moved upon Judge's summons for certain additional issues before Mr. Justice <NAME>. The learned Judge dismissed the summons and the defendant appeals under Clause 15 of the Letters Patent of 1865. The question has been referred to the Full Bench whether the order in this case is a judgment within the meaning of that clause. The meaning of the word 'judgment' has often come up for consideration in this Court and the cases show a considerable diversity of opinion, Apart from the question of the true signification of that word in clautse 15 there has also been considerable difficulty in the application of the definition to the facts of individual cases. It is perhaps, to be regretted that the question .was not set at rest earlier so far as this Court was concerned by the authoritative pronouncement of <ORG>. Having regard to the contrariety of opinion it is inevitable, whatever view we may take of the meaning of the term 'judgment, that some decisions of this Court at all events will be found to be at variance with it.

19. What then does the word 'Judgment' mean in Clause 15 of the Letters Patent? In Daniel's 'Chancery Practice,' Volume I, page 625 the following definition occurs. "A judgment is a sentence or order of the <ORG>, pronounced on bearing and understanding all the points in issue, and determining the right of all the parties to the cause or matter. It is either interlocutory or final." These judicial pronouncements are known as 'Judgments' at Common law and as 'Decrees' in Chancery. See page 321, introduction to Seton on "Dacrees.' A more accurate definition is to be found in <NAME> on ' Judgments' at page 2 where the author says: "We may define a 'Judgment' as the determination or sentence of the law pronounced by competent Judge or court as the result 'of an action or proceeding instituted in such <ORG> affirming that upon the matters submitted for decision a legal duty or liability does or does not exist." Again at page 3 "the term which, in equity practice, corresponds to 'judgment' at common law is 'decree.' A 'decree' is a determination or sentence of equity pronounced by a competent <ORG> upon the controversies submitted for decision." At page 32 the author proceeds to define an interlocutory judgment. "A 'judgment' which is not final is called ' interlocutory, i.e., an ' interlocutory judgment' is one which determines some preliminary or subordinate point or plea or settles some step, question or default arising in the progress of the cause but does not adjudicate the ultimate rights of the parties or finally put the case out of <ORG>. Thus a judgment or order passed upon any provisional or accessory claim or contention is in general merely ' interlocutory ' though it may finally dispose of that particular matter." Distinguishing between judgments and orders the learned author says at page 5 "an" order], is the mandate or determination of the <ORG> upon some subsidiary or collateral matter arising in an action, not disposing of the merits but adjudicating a preliminary point or directing some steps in the proceedings." It is unnecessary to refer to other definitions some of which are collected in <NAME> (1904) I.L.R. 27 Mad. 432. But these citations are hardly sufficient for defining the meaning of the term 'judgment' in the Letters Patent though they render us substantial assistance in arriving at the exact signification intended by the framers of the Letters Patent, We find the terms judgment, sentence, order, decree and preliminary or interlocutory judgment employed in the Letters Patent. It is necessary to understand the use of the term ' judgment' in Clause 15 in such a manner as to give effect to the several words above noted that are employed in the Letters Patent. When the terms final, preliminary, and interlocutory judgment occur in other parts of the Letters Patent it is only reasonable to assign to the word ' judgment' standing by itself in Clause 15 an interpretation which will cover the various kinds of judgments specifically dealt with in other clauses of the Letters Patent. Clauses 39 to 42 of the Letters Patent of 1865 as well as the corresponding clauses of 'the Letters Patent of 1862 deal with appeals to <ORG>. They contemplate an appeal from a final judgment, decree or order as a matter of course, provided certain requirements as to value or certificate of fitness are satisfied. An appeal to the same tribunal is allowed from any preliminary or interlocutory decree, judgment, order or sentence with the leave of the <ORG>. If an interlocutory judgment is appealable to <ORG> with the leave of the <ORG>, it can only be when it is a decision of the High <ORG> on appeal or in its original jurisdiction if the Bench passing the interlocutory judgment is composed of the majority of the Judges of the <ORG>. It would be a strange result to hold that from an interlocutory judgment from the original side leave may be given to appeal to <ORG> under Section 40 even though it is a pronouncement of a single Judge, there being no appeal to the High <ORG> itself under Clause 15. The proper view therefore to take of the meaning of the word judgment' in Section 15 is to understand it as covering an ' interlocutory or preliminary judgment,' But a preliminary or interlocutory judgment is not the same thing as an interlocutory order And whatever width of interpretation the term ' judgment ' may be capable of it ought not to be so understood as to cover ' interlocutory orders.' It was contended by Mr. <NAME> that as Clause 15 speaks of a ' judgment' not being a ' sentence ' or ' order ' passed and made in a criminal trial that all orders other than those that are made in a criminal trial should be held to be comprised within the term ' judgment.' This argument appears to me to be inadmissible. An order in a criminal trial does not correspond to the interlocutory order in a Civil Cause but ordinarily to an order of discharge or acquittal which terminates in a criminal proceeding in favour of a prisoner as a sentence does the other way. The phrase "not being a sentence or order passed or made in any Criminal trial" was not in Clause 14 of the Letters Patent of 1862 which corresponded to Clause 15 of the later letters. It appears to have been inserted in Clause 15 of the Letters Patent of 1865 mainly to indicate the exception dot with in Clause 25 later, though it is not confined to a sentence or order in the exercise of Original Criminal Jurisdiction as Clause 25 is.

20. It was suggested in the course of the argument that Act VIII of 1859 which was in force at the time of the issue of the Letters Patent would be a valuable guide to the meaning of the word 'judgment' though the provisions of the Act ware not binding as to what should be held to be appealable judgments. Having < regard to the language of Clause 37 of the original Letters Patent and of the later letters the view appears to have been entertained that the class of appealable judgments must be confined to those that were appealable under the Code of Civil Procedure. Both in The Justices of the Peace for Calcutta v. <ORG> (1872) 8 Beng L.R. 433 and in <NAME>, widow of <NAME> v. <NAME> (1872) 9 B.H.C.R. 398 the opinion was expressed that as Section 363 of Act VIII of 1859 prohibited appeals from interlocutory orders in the course of the suit and the only appeals from orders were under Sections 36 , 76 , 85 , 95 and 119 , the word 'judgment' in Section 15 of the Letters Patent should receive a restricted interpretation so as not to allow an appeal in cases where no appeal lay under the Code. This view was obviously open to exception. The rules to be made under Clause 37 for regulating proceedings in civil cases though the court was to be guided as far as possible by the provisions of the Code of Civil Procedure could hardly include a provision regulating the right of appeal already determined by Section 15 and as pointed out by the Full Bench of this Court in <CITATION> (1899) I.L.R. 22 Mad. 68, the provisions as to appeals in the Code applies to cases in which appeals lie from one court to another and not from one member of a court to other members of the same court. Having arrived then at the conclusion that the word ' judgment' covers a ' preliminary or interlocutory' judgment as well as a ' final' judgment that it does not include an ' interlocutory' order and that the interpretation is uncontrolled by any provision of the Code of Civil Procedure though having regard to the reference to the Code in Section 37 radical divergence from it is hardly to be expected, we may proceed to further delimit the exact boundaries of the field covered by the term as used in Clause 15.

21. The definitions with which we started will hardly suffice to mark the boundary accurately. There is no doubt that the adjudication of a right or liability which determines a suit or appeal is a judgment. Even a refusal to adjudicate which puts an end to a particular suit or appeal must equally amount to a 'judgment.' This has not always been borne in mind as we shall find later on in dealing with the ease of <CITATION> (1904) I.L.R. 27 Mad. 482, A decision on the merits of the controversy between the parties is not essential to the termination of a suit or appeal. Even though the proceeding is not a suit or appeal as technically understood, but is only what may be called an original petition like an application for a succession certificate or the appointment of a guardian, the pronouncement which terminates the proceeding has the characteristics of a judgment, though there is a formal difference in the designation of the proceeding (see Rule 4 Moffussil Rules of Practice). But the right of liability with reference to which the court adjudicates or declines to do so must be the substantive claim or liability and not as Mr. <NAME> tried to maintain a right to a particular judicial procedure or a detriment suffered in being danied the benefit of a rule of procedure. 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. See however <NAME> v. <NAME> (1890) 18 I.A. p. 6 and <CITATION> (1894) 22 I.A. 1, as to flail judgments under Section 595 of the Civil Procedure Code of 1882.

22. The Common Law Procedure Act, 15 and 16 Victoria, Chapter 76, racognized the distinction between interlocutory and final judgments. See Sections 27 and 140 . But they were both 'judgments' as distinguished from ' interlocutory orders' under sections 52 , 51 and 222 . I am unable to agree with Mr. <NAME> that interlocutory judgments which decide the merits are not judgments under Section 15 . The question still remains whether orders in incidental proceedinge for attachment or arrest before judgment, for a temporary injunction or for the appointment of a receiver are judgments within the meaning of the term as used in Clause 15. Such proceedings are not natural steps in the determination of the cause. But they are remedies, though provisional in their character, and the judicial" determination of those proceedings may well be deemed to be analogous to the disposal of original petitions which determines the rights of parties. An appeal was specially provided from such orders even in the code of 1859 and the decisions in such cases may well be treated as interlocutory judgments. Cases of stay of execution, or security for costs, whether the order is in favour of one party or another, must stand on the same footing as temporarily affecting the rights of parties.

23. We have now to examine the decisions to see how far these principles are in accord with the rules that are deducible from the oases. So far as I have been able to discover, there are only four or five decisions in which an endeavour has been ' made to arrive at a definition of the term ' judgment' as used in Clause 15 of the letters Patent, The decision in <ORG> for Calcutta v. <ORG> (1872) 8 Beng. L.R. 433 stands at the head of them all. A mandamus was issued by Mr. Justice <NAME> sitting on the Original Side on the Justices of the Peace of Calcutta to compel them to refer to arbitration a question of compensation. "The mandamus was to do certain things or to show cause to the contrary so that the order of the Original Judge did not determine any question whatever between the parties. It only initiated the proceedings by which the liability of the Justices to make compensation would be ascertained and determined." <NAME>, C. J., says "We think judgment in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined." I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment: for otherwise the rejection of a plaint for defect of form or insufficiency of court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning. I may also observe that the "part "which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account. The decision of <NAME>, widow of <NAME> v. <NAME> (1872) 9 B.H.C.E. 398 is in substantial accord with the judgment of <ORG> though Chief Justice <NAME> seemed to consider that Clause 15 was governed by Act VIII of 1859. That this latter view is erroneous appears to be clear from the decision of <ORG> in <CITATION> (1883) I.L.R. 9 Calc. 482 (P.C.) where an order of a single Judge refusing to transmit an order of <ORG> to a Subordinate <ORG> for execution was held to be appealable as a 'judgment' under Clause 15 although such an order was not included as appealable under Section 588 of the Code of 1882. The decision in <NAME> v. <NAME> (1868) 3 M.H.C.R. 384 was the first attempt in Madras to ascertain the meaning of the word judgment' in the Letters Patent. Leave to institute a suit having been refused by the Judge sitting on the Original Side on the ground that the cause of action having in great part arisen outside Madras, an appeal was preferred under Clause 15. The two very learned Judges who decided that case held that the term meant any derision or determination affecting the rights or the interest of any suitor or applicant. If they had stopped there it might be doubted whether this language was not in substantial accord with that of Sir <NAME> in <ORG> for Calcutta v. <ORG> (1872) 8 Beng. L.R. 433. But Sir <NAME> proceeds to say at page 388 "when the language giving the appeal is so general in its terms as that contained in the fifteenth clause of the chapter, it is, we think, impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from." It seams to me that this is manifestly too wide a definition. And the opinion has been expressed in later cases in Madras and elsewhere that this is so. I need not stop to notice the passing remark in <CITATION> , (1891) I.L.R. 14 Mad. 83 that every order of a single Judge is a judgment. For this has been disapproved of in two later cases, <CITATION> (1901) I.L.R. 24 Mad. 358 and <NAME> v. <NAME> (1901) I.L.R. 24 Mad. 511 in which one of the learned Judges who was a party to the judgment in <CITATION> . (1891) I.L.R. 14 Mad. 88 joined in the disapproval. <CITATION> (1901) I.L.R. 27 Mad. 432 which was an appeal from a decision of a single Judge declining to interfere under Section 25 of the Small Cause <ORG>s Act, Sir <NAME>, officiating C.J., and <NAME>, J., defined ' judgment ' in Section 15 of the Letters Patent by confining it to an adjudication of the right or liability. But they regarded a refusal to interfere as no judgment, It was said that the <ORG> had a discretion to interfere and a refusal to exercise a discretion was no judgment, This raises a question as to whether the refusal to exercise a discretion does not involve the application of the judicial mind as much as a decision in the exercise of discretion. Observations similar to those that have been made in this case are to be found in <CITATION> (1901) I.L.R. 24 Mad. 358 and in <CITATION> (1903) I.L.R. 26 Mad. 437 in which letter case <NAME> and <NAME>, <NAME>, refused to entertain an appeal from an order refusing leave to appeal in forma pauperis because it was within the discration of the <ORG> to grant or refuse such leave. I am unable to agree in the principle enunciated in those decisions is regards discretionary orders and orders refusing to exercise a discretion not being appealable. This view' was expressly disapproved of by <NAME> and <NAME>, <NAME>., in <NAME> v. <NAME> (1907) I.L.R. 30 Mad. 143. In <ORG> case of <CITATION> (1883) I.L.R. 9 Calc. 482 (P.c) it was held that <ORG> had rightly entertained the appeal under Section 15 from the order of the single Judge who refused to transmit the order of <ORG> for execution. <ORG> which entertained the appeal in Calcutta had expressly stated in the matter of the petition of <NAME> (1881) I.L.R. 9 Calc. 594 at p. 599 that the wrong exorcise of discretion by the Judge below was the ground on which the appeal was entertained. In <NAME> v. <NAME> (1868) 3 M.H.C.R. 384 the point was wall put by Sir <NAME> at page 388. The question of the right of appeal, he pointed out was differant from how a matter of discretion should be dealt with by an appellate <ORG>. He said "it is obvious that the duty of the appellate <ORG> in disposing of the appeal may vary considerably according to the nature of the order or decree complained of. And we think it may be stated as a general rule that when the determination complained of is merely the result of the exercise of discretion on the part of the Judge, in a matter which was a proper subject for the exercise of that discretion, the appellate <ORG> would rightly decline to interfere." The fact of a matter being within the discretion of the original Judge is not a ground for refusing to entertain the appeal but a sufficient reason for declining to interfere with that discretion, I cannot therefore accept Mr. <NAME>'s apparent concession that if the order of the single Judge is one which ha has made in the exercise of discretion, a party has no right to the exercise of that discretion in a particular way and is therefore not entitled to appeal when ha is aggrieved by an erroneous exercise of that discretion.

24. It is unnecessary to examine all the cases in detail. It is sufficient to say that I have gone through every one of them. In some of thorn the true principle does not appear to have been recognized or kept in view. In some others the application of the principle to the particular facts of the case appears to be open to exception. All the Calcutta oases cited at the bar The Justices of the Peace for Calcutta v. <ORG> (1872) 8 Bang. L.R. 433, <NAME> v. <NAME> (1879) I.L.R. 4 Calc. 231, <NAME> v. Fuckhrunnissa Begum (1879) I.L.R. 4 Calc. 531, <CITATION> (1883) I.L.R. 9 Calc. 482 (P.C), <NAME> v. <NAME> (1899) I.L.R. 26 Calc. 361, <NAME> v. <NAME> (1901) 5 C.W.N. 78, <NAME> v. <NAME> (1909) I.L.R. 35 Calc. 1096 with the exception perhaps of the decisions in <NAME> v. Baboo Behary hall (1901) 25 W.R. 529, <NAME> v. <NAME> (1876) I.L.R. 1 Calc. 102, <NAME> v. <NAME> (1881) I.L.R. 7 Calc. 339, <CITATION> (1890) I.L.R. 17 Calc. 455 and <CITATION> (1891) I.L.R. 18 Calc. 182 which are cases of leave to appeal to <ORG> dealt with on special ground?, appear to be in accord with the principles I have endeavoured to formulate. So are also all the Bombay cases cited; <NAME>, widow of <NAME> v. <NAME> (1872) 9 B.H.C.R. 398, <CITATION> (1875) 12 Bom. H.C.R. 129, <NAME> v. <NAME> (1905) I.L.R. 29 Bom. 249, <CITATION> (1909) I.L.R. 83 Bom. 216, <CITATION> (1910) I.L.R. 34 Bom. 1, and <CITATION> (1908) 10 Bom. L.R. 337. As regards the Madras eases it is impossible to express oneself as in agreement with them all. The decision in <NAME> v. <NAME> (1868) 3 M.H.C.R. 384 is certainly right, whatever may be said with reference to the definition given of "judgment." In <NAME> v. Administrator-General (1876) I.L.R. 1 Mad. 118 an appeal was rightly held to lie against an order determining the rate of commission payable to the Administrator-General. <CITATION> . (1891) I.L.R. 14 Mad. 88 the order of adjournment was certainly not appealable, But an appeal lay as regards the application to vary the rate of alimony and though the definition of judgment there was certainly open to exception the order of adjournment itself was not varied in appeal. In <NAME> v. <NAME> (1891) I.LR. 14 Mad. 406 where a single Judge had set aside a decree for rent in part and called for a report as to the remainder there was at least an interlocutory judgment from which an appeal was rightly held to lie. <CITATION> (1901) I.L.R. 24 Mad. 252 the application of a transferee from the plaintiff to be added as a party was refused, As the refusal was a determination of the proceeding so far as he was concerned, it seems to ma he was rightly held entitled to appeal The decision in <CITATION> (1901) I.L.R. 21 Mad. 358 where an order refusing to stay execution was held not to be a judgment, proceeded on the authority of <NAME> v. Dorasami Aiyar L.P.A. No. 5 of 1900 (unreported) and <CITATION> (1894) I.L.R. 21 Calc. 473 and Upon the view that the order of the single Judge was one made by him in the exercise of his discretion. Staying execution is a temporary interference with a right adjudged, and the refusal to stay is a refusal of a provisional remedy, as would be the refusal of an injunction or an attachment before judgment. It appears to me that the sounder view is that of <ORG> in <NAME> v. <NAME> (1901) 5 C.W.N. 781. The Calcutta case <CITATION> (1894) I.L.R. 21 Calc. 473 which this <ORG> purported to follow, is explained away in the later decision in <NAME> v. <NAME> (1901) 5 C.W.N. 781. I have already dealt with the argument derived from the discretionary character of the order. If pushed to its full length it would cover all oases of specific relief which are within the discretion of the <ORG> and the grant or refusal of such relief would cease to bo the subject of appeal under Clause 15 of the Letters Patent, a result which shows its weakness. It is difficult to distinguish in principle between an order staying execution or refusing to stay it and an order directing security for the costs of an appeal during its pendency. Though the failure to furnish the security may eventually lead to the dismissal of the appeal where security was ordered, the refusal to direct security is not attended with any such consequences, All these orders affect the right of the parties though temporarily and must be deemed to fall within the definition of judgment. It is worthy of note that in <NAME> v. <NAME> (1901) I.L.R. 24 Mad. 514 an order for stay of execution and an order for security for costs referred to by way of illustration were treated on the same footing though in favour of the opposite view that no appeal lay. It was rightly held, if I may presume to say so, in <CITATION> (1902) I.L.R. 25 Mad. 555 and Seshagiri Bow v. <NAME> (1903) I.L.R. 26 Mad. 502 that an appeal lay from an order refusing to extend time for the giving of security for the costs of an appeal and from an order directing security to be given. Two further cases remain to be noticed. <NAME> v. <NAME> (1903) I.L.R. 26 Mad. 28 and <NAME> v. <NAME> (1907) I.L.R. 30 Mad. 143. It is difficult to support the latter. An order refusing to issue a commission, however serious the ultimate results to the party, is a purely interlocutory order and not a judgment terminating a suit or other proceedings or affecting the merits. As regards the former it is possible to con» tend that so far as the judgment of the single Judge of this <ORG> was concerned it was passed in revision and not in the course, of an interlocutory proceeding. The Subordinate Judge had refused to issue a commission for the examination of a witness. That was a mere interlocutory order. Mr. Justice <NAME> sat that aside in revision, Could his order be treated as other than interlocutory so far as the execution proceeding was concerned in which the witness was to be examined on commission? It is unnecessary to express an opinion on the question whether Mr. Justice <NAME>'s order was a judgment. A full examination of the cases cited on both sides leads me to the conclusion that no appeal lies from the order of Mr. Justice <NAME> in the present case. I would answer the reference accordingly.

<NAME>, <NAME>

25. I agree that the answer to the question referred for disposal should be in the negative.


PETITIONER: THE STATE OF BOMBAY Vs. RESPONDENT: F.A.ABRAHAM DATE OF JUDGMENT: 12/12/1961 BENCH: <NAME>, A.K. BENCH: <NAME>, A.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA CITATION: 1962 AIR 794 1962 SCR Supl. (2) 92 CITATOR INFO : R 1964 SC1361 (10) R 1966 SC1529 (14) R 1974 SC 423 (18) R 1974 SC1898 (7) RF 1976 SC1766 (2,12) RF 1976 SC2547 (21) R 1977 SC1617 (4) ACT: Government Servant-officiating Post-Reverted from, for unsatisfactory work-If amounts to punishment-Refusal by Government to furnish reason of reversion if proves that the reversion was in the nature of punishment-Government of India Act, 1935(26 Geo. 5 ch. 2), s. 240(3)-Constitution of India, Art. 311. HEADNOTE: The respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later a Departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of police to the Deputy Inspector-General of Police but these allegations were not proved at the enquiry. The Inspector-General of Police however thereafter wrote to the Government that the respondent's previous record was not satisfactory and that he had 93 been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government inspite of the representations made by the respondent. he filed a suit challenging the order. The suit was decreed by <ORG> instance and the decree was affirmed by <ORG> on appeal. ^ Held, that a person officiating in a post has no right to hold it for all times. A person who is given an officiating post to test his suitability to be made permanent later, holds it on the implied term that he would have to be reverted if he was found unsuitable. A reversion in such a case on the ground of unsuitability is an action in accordance with the terms on which the officiating post was being held and is not a reduction in rank by way of punishment to which s. 240 of the Government of India Act, 1935, would be attracted. The observation in <NAME> v. State of Madhya Pradesh, (1954) N. L. J. 305, that when a person officiating in a post is reverted for unsatisfactory work, that reversion amounts to reduction in rank disapproved. The Government's refusal to supply the respondent with the reasons for reverting him could not proved that the reversion was by way of punishment. The departmental enquiry held later in this case does not prove that the respondent was reverted by way of punishment. The Government had the right to consider the suitability of the respondent to the post to which he had been appointed to officiate. <CITATION> , A. I. R. 1960 S.C. 689, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of 1961.

Appeal from the judgment and decree dated March 14, 1957, of <ORG> at Nagpur, in first Appeal No. 75 of 1956.

<NAME> and <NAME>, for the appellant <NAME>, <NAME>, <NAME> and <NAME>, for the respondent.

1961. December 12. The Judgment of the Court was delivered by <NAME>, J.-This is an appeal by the State of Maharashtra against the judgment of <ORG> at Nagpur confirming the decree of the Additional District Judge, Nagpur, declaring that the order reverting the respondent from the rank of officiating Deputy Superintendent of Police to the rank of Inspector of Police, was illegal and void, and granting certain consequential reliefs.

The judgment of <ORG> and the learned Additional District Judge <NAME> to us to be clearly unsustainable. The Courts below held that the respondent had been reduced in rank in violation of the terms of s. 240(3) of the Government of India Act, 1935, which corresponds to Art. 311 of the Constitution, inasmuch as he was not given an opportunity to show cause against the order proposed to be made. It is not in dispute that the opportunity has not been given. In our view, however, for reasons to be presently stated, the respondent was not entitled to that opportunity.

On June 8, 1948, the respondent was holding the post of Inspector in <ORG>. Service. He was appointed to officiate as Deputy Superintendent of Police with effect from June 9,1948. On January 27, 1949, his services were lent to <ORG> in connection with the police action then being taken there. On February 5, 1949, he was sent back to the central Provinces and Berar. On February 19, 1949, the Inspector General of Police, <ORG>, passed an order which reads as follows:

"<NAME> (respondent) Deputy Superintendent Police, <NAME>, is reverted to rank of Inspector."

It is this order which was sought to be impugned by the respondent in the suit out of which this appeal arises.

After the order of reversion had been made the respondent, on February 23, 1949, asked for the reason for which he was reverted. On March 3, 1949, the Government refused to communicate the reasons to him. On May 25, 1949, a confidential memorandum was sent by the District Superintendent of Police, Parbhani, to the Deputy Inspector General of Police, Aurangabad, in which he stated that he had conducted an inquiry into certain allegations of corruption made against the respondent while he was acting in the service of <ORG> at Parbhani and he thought that those allegations were of substance. Thereupon, the Deputy Inspector General of Police, Aurangabad, held a departmental inquiry regarding these allegations and found that they had not been proved. This inquiry had been held behind the back of the respondent. Notwithstanding this, the order reverting the respondent was maintained. There is a letter addressed by the Inspector General of Police to the Chief Secretary to <ORG>, dated August 19, 1950, written after the departmental inquiry wherein it is stated that the respondents previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police as the Government was in need of officers and that he had been given a chance in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the officer was habitually dishonest and did not deserve promotion. The respondent made representations to the Government to revise the order reverting him to the lower rank but the Government expressed its inability to do so. It may be stated here that on the promulgation of the Constitution the central Provinces and Berar became the State of Madhya Pradesh in the Indian Union.

In the judgment under appeal <ORG> followed its earlier decision in <NAME> v. State of Madhya Pradesh (1) in which it had been held that if a person officiating in a higher post is reverted to his original post in the normal course, that is, on account of the cessation of the vacancy or his failure to acquire the required qualification, the reversion does not amount to a reduction in rank but if he is reverted for unsatisfactory work, then the reversion amounts to reduction in rank. <ORG> held that the Government's plea that the respondent had been promoted as there was dearth of officers was an afterthought and that the fact that the respondent had been given a chance to officiate in the higher post prima facie showed that he was fit to hold that post. <ORG> also held that the Government's refusal to communicate to the respondent the reasons for his reversion or to give him the report of the inquiry, indicated that the Government was reverting him on the ground that his work was not satisfactory. It, therefore, came to the conclusion on the authority of <NAME>'s case (1) that the respondent must be held to have reduced in rank and this reduction in rank was illegal as the respondent had not been given an opportunity to show cause against it.

We are unable to agree with the observation in <NAME> case(1) that when a person officiating in a post, is reverted for unsatisfactory work, that reversion amounts to a reduction in rank. A person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reasons. When the permanent incumbent comes back, the person officiating is naturally reverted to his original post. This is no reduction in rank for it was the very term on which he had been given the officiating post. Again, sometimes a person is given an officiating post to test his suitability to be made permanent in it later. Here again. it is an implied term of the officiating appointment that if he is found unsuitable, he would have to go back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank. It has been held by this Court in <CITATION> (1) that, "It is, therefore, quite clear that appointment to a permanent post in a <ORG> service, either on probation, or on an officiating basis, from the very nature of such employment, itself of a very transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a <ORG> service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time."

The respondent had of course no right to the post of Deputy Superintendent of Police to which he had been given an officiating appointment and he does not contend to the contrary. He cannot therefore, without more, complain if he is sent back to his original post. This is what happened in this case even if it be taken that the respondent had been reverted to his original rank because he was found unsuitable for the higher rank to which he had been given an officiating appointment.

It is however true that even an officiating person may be reverted to his original rank by way of punishment. It was therefore, observed in <NAME>'s case (1) at p. 863, "Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the <ORG> had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the <ORG> has terminated the employment as and by way of penalty."

It is quite clear that the circumstances mentioned in this observation have not occurred in the present case. The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He of course, lost the benefit of the appointment to the higher rank but that by itself cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had uncle the terms of the officiating employment. <ORG> seems to us to have been in error in thinking that the Government's refusal to supply the respondent with the reasons why action has taken against him proved that the reversion was a reduction in rank by way of. punishment; the refusal cannot prove that. It may give rise to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment: see <NAME> case (1) at p. 862. It does not require to be repeated now that unless the reversion is by way of punishment, s. 240 (3) is not attracted.

<ORG> seems to have been in error also in drawing an inference from the holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishment.

Mr. <NAME> for the respondent referred us to <CITATION> (2) in which it was observed, "But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for or some similar reason; the termination of service is by way of punishment, because it puts a stigma on his competence and thus affect his future career."

That case dealt with the discharge of a probationer officer on the ground that he was unsuitable. The observation there made was considered by this Court in the later case of <CITATION> (1) where it was said, "The third proposition in the latter case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed." We would repeat that in the present case the enquiry was concerned with ascertaining the suitability of the respondent for the higher rank and was not a punishment.

At one stage Mr. <NAME> was inclined to argue that the enquiry was really a part of the original order of reversion and that it had been deliberately postponed to as to avoid the applicability of s. 240(3) of the Government of India Act, 1935 No such case is made in the plaint. Neither was it made in the courts below nor can it be based on their findings. Such a case cannot now be made.

We think, therefore, that the appeal must be allowed with costs throughout and we order accordingly.

Appeal allowed.