JUDGMENT
Misra, J.
1. These are two appeals under Clause 10 of the Letters Patent against two orders of a learned single Judge of this Court. One Tulsi Prasad Narain Singh executed a Will on the 25th October, 1935. by which he appointed five executors to carry out his directions in the Will. Certain properties were dedicated to a deity Sri Durga Panchayatan; certain cash legacies were made in favour of the persons mentioned in the Will who are his relations; some money was to he spent annually for some charitable purposes; in favour of some persons provision was made for annuities for life and in favour of some other persons, including his daughter Shrimati Lalita Kuar, perpetual annuities were granted. The executors named in the Will applied for and obtained Probate of the Will. Tulsi Prasad Narain Singh died shortly after the execution of the Will. In 1940, disputes arose which gave rise to M. T. C. Nos. 71 and 72 of that year M.J.C. No. 71 arose on the application of Srimati Lalita Kuar for the removal of all the executors after the death of Munshi Rajeshwar Prasad, Am-Mukhtar of the testator, and M.J.C. No. 72 arose out of the application of Jadunadan Prasad Singh, one of the executors and brothers of the testator, for the removal of Balindra Prasad Narain Singh.
These two applications were disposed of by Agarwala, J. as he then was, on the 3rd of April, 1941. Balindra Prasad Narain Singh was discharged from the office of the executor and Bireshwar Prasad Narain Singh was appointed in his place in M.J.C. No. 72 of 1940. Prayagdutta Narain Sahi was appointed executor in succession to Munshi Rajeshwar Prasad, as a result of a compromise in M.J.C. No. 71 of 1940. Letters Patent Appeals were filed against the decision in the two cases which were disposed of by Fazl All and Ray, JJ., as they then were, on the 13th of February, 1946, and Prayagdutta Narain Sahi was made the managing executor, the remaining two executors being Janardan Prasad Narain Singh and Bireshwar Prasad Narain Singh. On the 5th of October, 1949, another executor Janardan Prasad Narain, Singh also died.
After that, three petitions were filed, one by Prayagdutta Narain Sahi, the managing executor, being M.J.C. No. 229 of 1950; Bireshwar Prasad Narain Singh filed another giving rise to M.J.C. No. 90 of 1951 and a third petition was filed by a number of annuitants which gave rise to M.J.C. No. 85 of 1952. M.J.C. Nos. 85 and 90 were, directed against the managing executor Prayagdutta Narain Sahi, Das, J., as he then was, disposed of these applications by his judgment dated the 4th of September, 1952. Prayagdutta Narain Sahi was removed from the office of the managing executor on the ground of various irregularities and mismanagement, but he was allowed to continue as an ordinary executor. M.J.C. No. 229 of 1950 was dismissed. The learned Judge, however, directed the District Judge of Darbhanga in M.J.C. No. 91 of 1951 to submit the names of three persons to be appointed as executors to fill up three vacancies in the board of executors in accordance with the direction of the testator, Sri Tulsi Pd. Naraiu Singh. He recommended three names, being those of Babu Krishna Prasad Narain Singh, Babu Lachhmeshwar Pd. Narain Singh and Babu Girdhari Prasad Narain Sahi, the son of Prayagdutta Narain Sahi, the managing executor, who was removed from that office, although some of the annuitants objected to the name of Babu Girdhari Prasad Narain Sahi.
2. The recommendation of the learned District Judge was considered by Ramaswami, J. (as he then was) and all the three persons recommended were appointed as executors to administer the estate of Tulsi Prasad Narain Singh also with the remaining two executors, namely, Bireshwar Prasad Narain Singh and Prayagdutta Narain Sahi. Letters Patent Appeal No. 3 of 1954 has been directed against this order of the learned single Judge dated the 4th December. 1953. Letters Patent Appeal No. 8 of 1954 is directed against the order dated the 19th of January, 1954, passed by the learned Judge by which he appointed Girdhari Prasad Narain Sahi as managing executor, as recommended by the learned District Judge of Darbhanga, rejecting the objection of the appellants to his appointment.
3. Before the appeal could be heard or merits, Mr. Lalnarain Sinha for the respondents raised a preliminary objection challenging the maintainability of the appeal. His contention was that the order passed by the learned single Judge was in the exercise of his discretionary jurisdiction and no appeal lies against such an order under Clause 10 of the Letters Patent, inasmuch as such an order does not amount to a judgment within the meaning of the term in Clause 10 against which alone an appeal under the Letters Patent would be competent. He has referred in this connection to Sections 295. 600 and 301 of the Indian Succession Act (39 of 1925) as also to a number of decisions bearing on the question of the meaning of the term “judgment” as used in Clause 10 of the Letters Patent, and Mr. Kaushal Kishore Sinha for the appellants has also referred to a number of decisions to establish that the two orders passed by the learned single Judge giving rise to these appeals fulfil the requirement of a “judgment” as it is used in CL 10 of the Letters Patent, and, as such, the appeals are competent in the eye of law.
Section 295 of the Indian Succession Act provides that a proceeding for grant of probate before the District Judge is in the nature of a regular suit in which the petitioner for probate and letters of administration is in the position of a plaintiff and the person appearing to oppose the grant is in the position of a defendant. Section 300 relates to the concurrent jurisdiction of the High Court and the District Judge in the matter of grant of probate or letters of administration. Section 301 runs thus:–
“The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.”
Mr. Lal Narain Sinha has contended that section 301 thus is confined to the Special jurisdiction of the High Court–a jurisdiction which has not been conferred upon the District Judge in regard to the suspending, removing or discharging of any private executor or administrator, although, in other matters relating to the grant of probate or letters of administration, the jurisdiction of the District Judge and that of the High Court have been made concurrent. He has urged accordingly that an order passed by the learned single Judge of the High Court being an order passed by the High Court, cannot be considered to be in the nature of a judgment and as such not appealable. He has referred in this connection to the case of Gobind Lal v. Administrator-General of Bihar (S) AIR 1955 Pat. 56 and the case of Kartar Singh v. Administrator General of Bihar, AIR 1959 Pat 349.
A Division Bench of this Court has held in Gobind Lal Nakphopha’s case. AIR 1955 Pat 56, that the term “judgment” as used in Clause 10 of the Letters Patent of the Patna High Court means a decree and not an order. It was held further that in a testamentary case, if a Judge of the High Court appointed the Administrator-General as administrator pendents lite under Section 247 of the Indian Succession Act read with Section 7 of the Administrator-General’s Act, and upon the rejoinder of a, party, refused to recall the order of appointment, the order was not a “judgment” within the meaning of Clause 10 of: the Letters Patent. No appeal lay against it; and Section 56 of the Administrator General’s Act also would not clothe such an order with the character or force of a decree. Mr. Lalnarain Sinha has contended that the jurisdiction exercised under Section 301 of the Succession Act is on a par with its jurisdiction under Section 247 of the Act, and, accordingly, the decision appointing a person as executor or a managing executor cannot be considered to be a decree, and as such, an order of this nature cannot come within the purview of the word “judgment” used in Clause 10 of the Letters Patent. Their Lordships referred with approval to the case of Dayabhai Jiwandass v. Murugappa Chettyar AIR 1935 Rang 267 (F.B.) which laid down that the word “judgment” in the Letters Patent of the High Court means a decree and not order.
Mr. Lalnarain Sinha has contended that this is also in consonance with the decision of the Privy Council in the case of Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 which also lays down that the word “judgment” in the Letters Patent of a High Court means in civil cases a decree and not a judgment in the Ordinary sense. In AIR 1959 Pat 349, the view expressed is that the word “judgment” connotes a judicial decision on the merits of the dispute between the parties which would imply an adjudication and a determination of the rights of the parties with regard to any of the matters in dispute between them. Accordingly, an order by the High Court Riving direction under the Administrator-General’s Act (3 of 1913) to convey the properties of a deceased person to a third party could not be treated as a judgment, inasmuch as it was neither an adjudication nor an order creating a right in favour of the party. And likewise an order by the High Court, recalling that order is not a judgment.
Mr. Kaushal Kishore Sinha for the appellant has, however, referred to the observation in this very judgment and distinguished it on the ground that in that case no right was created in favour of anybody, the direction being only to convey certain properties of the deceased to a third party. Unlike that case, however, in the instant case, right to manage the property as the managing executor is a valuable right and as such the decision in Kartar Singh’s case AIR 1959 Pat 349. supports his contention and can be of no assistance to the respondents. He has also referred to the cases of Tuljaram Row v. Alagappa Chettiar, ILR 35 Mad 1; Hurrish Chander Chowdhry v. Kali Sundari Debi, 10 Ind App 4 (PC), Hemendra Lal Roy v. R. Gupta, ILR 23 Pat 24: (AIR 1944 Pat 192): Baidyanath Sein v. Rajendranath Sein, AIR 1930 Ca] 803; Brojo Gopal Roy v. Amar Chandra AIR 1929 Cal 214: Ramamurthy v. President, Attur Cooperative Society. Attur.(S) AIR 1955 Mad 417; AIR 1925 PC 155 and AIR 1935 Rang 267.
In my opinion, however, the decision of this Court in (S) AIR 1955 Pat 56 which has referred to most of the cases cited above must be held to be conclusive in the matter. In fact, the judgment of Sir George Rankin in AIR 1929 Cal 214, which has been followed by this Court in the case of Banwari LaJ v. Shukrullah, AIR 1933 Pat 139 has made the position clear that the mere fact that a question of right is decided is not in itself conclusive. Where the judgment is in the exercise of the discretion of the Judge, whatever the merits of his decision may be, the discretion exercised cannot be attacked by way of appeal. In view of the above pronouncement of the Division Bench Of this Court, it must be held that the orders appealed from in this case cannot be regarded as a judgment within the meaning of Clause 10 of the Letters Patent. The decision in (S) AIR 1955 Mad 417, if anything, goes against the contention of the learned counsel for the appellants inasmuch as it has been held therein that a direction by the High Court to the executor or administrator under Section 302 of the Indian Succession Act is of a discretionary character and is neither appealable nor revisable.
4. Mr. Lalit Mohan Sharma has also drawn our attention to the decision in Asmmati Debi v. Rupendra Deb, AIR 1953 SC 198. In the Supreme Court decision, the question for consideration was whether an order for transfer of a suit made under Clause 13 of the Letters Patent amounted to “judgment” within, the meaning of Clause 15, It was laid down by their Lordships that it was not judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court, corresponding to Clause 10 of the Letters Patent of the Patna High Court, inasmuch as such an order did not affect the merits of the controversy between the parties in the suit itself, nor did it terminate Or dispose of the suit on any ground. Accordingly, it was not a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. It is no doubt true that their Lordships have also observed in their judgment that they did not purport to give an exhaustive definition of the term “judgment” upon which Mr. Kaushal Kishore Sinha has relied, but the principle upon which B.K. Mukherjea, J., as he then was, proceeded, as referred to above, may be generally considered as a safe criterion to determine the ambit of the term ”judgment” in a particular case.
5. It may further be noted that although the jurisdictions of the District Judge and the High Court are concurrent in all matters relating to probate or letters of administration under Section 300 of the Indian Succession Act, this particular matter in regard to suspension or removal of an administrator, and appointing another in his place, has been conferred only upon the High Court, and the District Judge has not been vested with such authority. Merely judicial determination on merits and not the exercise of discretion has been vested in the District Judge. Although it might have important consequences from the point of view of the administration of the testator’s estate, there is no reason to think that the Legislature would not have thought it proper to confer this jurisdiction upon the District Judge. The Legislature being aware of the discretionary nature of such power has thought it fit to vest it only in the High Court and not in the District Judge. For this reason also, apart from the fact that on the decisions referred to above, the two orders passed by Ramaswami, J., cannot be regarded as judgment within the meaning of Clause 10 of the Letters Patent, the preliminary objection raised by Mr. Lalnarain Sinha must prevail.
6. Accordingly, it is held that the two appeals are incompetent and must be dismissed. In this view of the matter, it is not necessary to go into the merits of the case upon which also Mr. Kaushal Kishore Sinha addressed us at some length.
S.P. Singh, J.
7. I agree.