Courtney-Terrell, C.J.@mdashThis is an appeal from a decision of Wort, J., in Miscellaneous Judicial Case No. 144 of 1931 which arose from somewhat unusual circumstances. The plaintiffs sued the defendants for dissolution of partnership. The partnership was formed for the purpose of carrying on a sugar factory. They also joined with their claim for dissolution of partnership a claim for damages for breach of the fundamental terms of the contract of partnership, the fundamental term of which it was said there was a breach being to carry on the factory concerned in a particular way. The merits of that case we are not concerned with.
2. The learned Subordinate Judge before whom the suit was tried passed a partnership decree decreeing partnership accounts and dissolution of the partnership and also decreed damages against the defendants for the tort or breach of contract, as the matter may be considered, alleged by the plaintiffs. He then proceeded to take evidence concerning the damages which the plaintiffs had suffered and he inquired into the allegation of damages as suffered up to the date of the suit and drew up his accounts upon that basis and for the period up to the date of the suit in so far as the question of damages was concerned. A little later the plaintiffs applied to the Subordinate Judge for a further decree against the defendants in the matter of damages or it may be that they asked for the continuation of the account as to damages from the date of the suit up to the date of the dissolution of partnership. I do not propose to offer any opinion as to which was the proper way to look at that claim. The Subordinate Judge proceeded however to deal with the damages alleged to have been suffered by the plaintiffs from the date of the suit continuing for a further period of about a year so as to carry the account of the damages up to the date of the dissolution of the partnership and he came to the conclusion that the plaintiffs in respect of that further period had suffered damages to the extent of Rs. 42,000 odd.
3. The defendants objected to this course and they said that the learned Subordinate Judge having originally given a decree for damages was now functus officio and as they said had no power to carry the order further and make what they said was a supplementary decree or further damages incurred beyond the date of the suit. The Subordinate Judge heard the objection and decided against the contention of the defendants who thereupon came to the High Court in revision and the learned Judge of this Court dismissed that application summarily.
4. Therefore on 1st October 1931 the learned Subordinate Judge delivered judgment in the matter before him of this further inquiry and he awarded damages to the amount I have stated together with costs of that further inquiry amounting to about Rs. 2,000 and he directed that the further sum of Rs. 42,000 by way of damages was to be shown on the credit side of the account.
5. The next material stage in the matter was that on an application to this Court for a transfer of the case it directed that the matter should be called up to this Court and continued as an original suit and it came before Wort, J. The defendants then applied to this Court in revision of the order of the learned Subordinate Judge and that matter of the application for revision was ultimately placed by my order before Wort, J., for the reason that he was already seised of the case as called up from the lower Court and it would be more convenient that he should deal with the matter. He heard the application in revision and rejected it and held nevertheless that in his opinion the Subordinate Judge had no jurisdiction to pass a supplementary judgment; but he held that having regard to the original decision of the Subordinate Judge it had been open to the defendants to get that decision altered by way of appeal and he had no right to deal with it by way of revision. A little later the defendants then took a somewhat curious course which has given rise to this appeal. They applied to Wort, J., on 23rd February 1932, that is to say, about four months or so after the original decision of the Subordinate Judge, to recall the order of the Subordinate Judge u/s 151, Civil P.C. and they put their case in this way:
6. They said that inasmuch as the case had been transferred to Wort, J., and inasmuch as it was transferred as a pending case that Wort, J., was in the same position as the learned Subordinate Judge himself and represented him in all his capacities and powers and therefore they asked him in fact to rehear the matter on the ground that the original decision of the Subordinate Judge had been, according to their contention, come to without jurisdiction and that he had no business to have passed the order which he passed for what they called a supplementary decree for damages. Wort, J., in dealing with this application repeated that in Ms opinion the Subordinate Judge who was his predecessor in office, as one might call him had no jurisdiction to have passed the supplementary decree; but the learned Judge nevertheless declined to exercise his discretion u/s 151 and recall the order.
7. It is unnecessary for the purposes of this decision to examine the question as to whether the learned Judge was right on the merits of the case. The only point for our decision is whether any appeal lies under the Letters Patent against the decision of Wort, J., refusing to exercise jurisdiction u/s 151, Civil P.C. A few observations may be made as to some of the jurisdictions used by this Court in which it is clear that no appeal lies.
8. Firstly a Judge of this Court exercising revisional power is clearly not subject to revision by a Bench of this Court.
9. Secondly an application for review, if resulting in the grant of the order for review, may be made the subject of an appeal, but it is very clear, and nobody disputes it, and it arises from the Code itself, that a decision by a Judge of this Court refusing to review his own order is not appealable.
10. In both the case of a revision and in the case of a review, the right to a revision or the right to a review depends upon the possibility on the part of the applicant of bringing to the notice of the Court some error in law in the case of a revision or in the case of a review the discovery of some new facts or any other new circumstance. But in the case of this particular application u/s 151 of the Code it was not suggested on behalf of the applicants that the learned Judge should do more than consider the very matters which had been before him or rather to be strictly accurate before the Subordinate Judge whom he then represented and decide those matters over again. A fortiori one would have thought that if refusal to exercise the discretion to review was not appealable the refusal to exercise powers u/s 151 would not be appealable. The matter is put by Mr. Das on behalf of appellants in this way:
11. He says that we are not concerned with the rights of appeal under the Code, that we are not embarrassed by the provisions relating to revisions and reviews; he claims to be entitled to fall back upon Section 10, Letters Patent, and to say that this decision of Wort, J., refusing to exercise his discretion u/s 151, Civil P.C. is a judgment within the meaning of the Letters Patent and further affects his rights as a litigant and therefore is properly the subject-matter of appeal. He has not been able, as he frankly conceded, to point to any case in which the Court had interfered with a refusal to exercise powers u/s 151, Civil P.C. He agrees that if the original order had in fact been passed by the learned Subordinate Judge whom Wort, J., subsequently represented that there would have been no appeal because the Civil Procedure Code, which would have governed the matter in those circumstances provides no appeal and as I say he falls back entirely upon the ''word "judgment" in the Letters Patent.
12. In my opinion that argument is not sound and the proper analogy between the decision of Wort, J., and his predecessor the Subordinate Judge is illustrated by the decision in the case of Kailash Chandra v. Revati Mohan Roy (1917) 41 IC 183 where it was held that a decision by a single Judge who had originally been a member of a Bench the other member of whom had ceased to be a Judge represented the two Judges when an application was made to him for review of the decision of those two Judges. It was also held that u/s 15, Letters Patent, of the Calcutta High Court, (corresponding to Section 10, Letters Patent, of this Court), no appeal lay under the Letters Patent from the decision of that judge notwithstanding that he was physically a single Judge.
13. The meaning of the term "judgment" has been exhaustively dealt with by Sir George Rankin. C.J., in the case of
14. To allow an appeal in a matter of this sort would be highly dangerous. It would allow any litigant who had a decision against him to go to the Court and ask for a recall of the judgment; and if the decision were against him on that application to carry the matter by way of Letters Patent to an appeal or indeed to raise any other appeal which he might consider allowable in the circumstances.
15. In my opinion this appeal, is not admissible and fails in limine and I would dismiss it with costs. Hearing fees ten gold mohurs.
Mohammad Noor, J.
16. I entirely agree. In my opinion the word "judgment" as used in Clause 10, Letters Patent of this High Court, is incapable of any exhaustive definition, a definition to cover all cases which may come up before the Court of appeal.
17. In the words of Sanderson, C.J., in the case of Budhu Lal v. Chattu Gope (1917) 44 Cal 816 whenever this point is taken the Court has to make its mind as to whether the particular order in question is a judgment within the meaning of Clause 15, Letters Patent of the Calcutta High Court, (corresponding to Clause 10, Letters Patent), having regard to the nature of the order. I am clearly of opinion that taking into consideration the circumstances under which it was passed the particular order passed by Wort, J., is not appealable. The appellants cannot be in a better position than if they had asked Wort, J., to recall an order passed by himself. A Judge has rightly or wrongly after hearing all the parties and taking into consideration all that can be said one way or the other adopted a particular course and passed a particular order. Whether that order itself is or is not appealable and if appealable at what stage are quite different matters. But if later on one of the parties comes and asked that Judge to recall the order either under his power of review or under his inherent power and that Judge merely refuses to take any step in the matter such an order is not a judgment within Cl., 10, Letters Patent.
18. In this particular case the appellants are in a somewhat worse position. The order of Wort, J., refusing to take action u/s 151, Civil P.C. was in effect based upon his judgment in exercise of the revisional powers of the Court passed a few days earlier. In effect the appellants in inviting us to hear an appeal against the order of Wort, J., or to be more correct against his refusal to pass any order u/s 151, Civil P.C., is in effect an invitation to hear an appeal against his order passed in revision. That in my opinion is not tenable.
19. I agree with my Lord the Chief Justice that the appeal should be dismissed with costs.
