1. This appeal is directed against an order of Mr. JusticeWalmsley, whereby he has set aside the decision of the District Judge anddirected the appeal to be re-heard. A preliminary objection has been taken tothe competency of the appeal on the ground that the decision is not a judgmentwithin the meaning of Clause 15 of the Letters Patent. To determine thevalidity of the preliminary objection it is necessary to state briefly thenature of the suit and the scope of the orders made at various stages thereof.

2. The plaintiff sued the defendant for accounts and put hiscase in the alternative. He alleged in the first place that the defendant washis servant employed in two wine shops, and was consequently liable to renderaccounts. He asserted in the second place that if the defendant was not aservant, he was a partner and was in that character liable to render accounts.The Court of First Instance came to the conclusion that the defendant was apartner and made a decree for dissolution of partnership and for accounts. Theplaintiff was dissatisfied with this decision and appealed to the DistrictJudge. The District Judge did not, as we gather from the records, hear the caseon the facts, but held as a matter of law that the defendant could not be apartner of the plaintiff. He accordingly set aside the decision of the TrialCourt and gave the plaintiff a decree for accounts against the defendant as anagent of one of the two wine shops mentioned. The defendant appealed to thisCourt. Mr. Justice Walmsley has allowed the appeal and remanded the case inorder that the appeal may be re heard by the District Judge.

3. On behalf of the responded it is contended that as allthe matters in controversy between the parties have been left open for freshadjudication by the District Judge, this decision is not a judgment within themeaning of the Letters Patent. In support of this view reliance has been placedupon the now classical definition given by Sir Richard Couch, C. J., in thecase of Justices of the Peace for Calcutta v. Oriental Gas Company (1). We areof opinion that the preliminary objection cannot be sustained.

4. Sir Richard Couch defined the expression judgment inClause 15 of the Letters Patent to mean a decision which affects the merits ofthe question between the parties by determining some right or liability, andadded that it might be either final, preliminary or interlocutory. Thisdefinition does not assist the respondent. The decision here does affect themerits of the question between the parties by determining a right or liability:its effect is to deprive the plaintiff of the benefit of the decree made in hisfavour by the District Judge and to re-open the entire controversy between theparties. It is plain that the expression some right or liability is notrestricted to the right in controversy in the suit itself. This is clear fromthe illustrations given by Sir Richard Couch in his judgment, as also from hisjudgment in the case of Hadjee Ismael Hadjee Hubeeb v. Hadjee Mahomed HadjeeJoosub 13 B. L. R. 91 : 21 W. R. 303. On the other hand, if we adopt the widerdefinition formulated by White, C. J., in the case of Tuljaram Row v. AlagappaChettiar 8 Ind. Cas. 340 [LQ/MadHC/1910/372] : 35 M. 1 : (1910) M. W, N. 696 : 8 M. L. T. 453 : 21M. L. J. 1 the decision is unquestionably a judgment within the meaning of theLetters Patent. The test is, not what the form of the adjudication is, but whatis 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 onwhich it is made, is to put an end to the suit or proceeding so far as theCourt before which the suit or proceeding is pending is concerned, or if itseffect, if it is not complied with, is to put and end to the suit orproceeding, the adjudication is a judgment Mathura Sundari Dassi v. HaranChandra Shaha 34. Ind. Cas. 634 : 43 C. 857 : 20 C. W. N. 504 : 23 C. L. J.443. The effect of the decisions of Mr. Justice Walmsley is to terminate theappeal in this Court and also to vacate the decree made by the District Judge;and a decree has been drawn up in this Court to give effect to this decisionDoucett v. Wise 2 Ind. Jur. (N. S.) 280 at p. 296.; Upendra Nath Bose v. BindeshriProsad (3); Krishen Dayal Gir v. Irshad Ali Khan (4). We are of opinion that,in these circumstances, the decision of Mr. Justice Walmsley is a judgmentwithin the meaning of the Letters Patent and the preliminary objection cannotbe sustained.

5. As regards the merits it is plain that the order must besustained. The District Judge did not hear the appeal on the facts butproceeded to determine the status of the defendant as a pure question of law.It is not necessary for us to express an opinion upon the legal questions incontroversy between the parties; and as we read the judgment of Mr. JusticeWalmsley, he did not commit himself to a definite proposition of law on thequestion, whether or not the defendant could legally be a partner of the plaintiff.He has held is substance that the facts must be investigated before the legalrelation between the parties can be determined. This view is manifestly right.

6. The result is that the order of Mr. Justice Walmsley isaffirmed with costs and the case remitted to the District Judge in order thathe may determine, first, the questions of fact which arise in the case andsecondly, all questions of law which may adjudication on those facts.

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Chandi Charan Sahavs. Jnanendranath Bhattacharjee(09.03.1917 - CALHC)