Judgment Reuben, J. 1. This is an appln. for leave to appeal to the S. C. from a decision of this Ct. on a reference under Sec.21 (3), Bihar Sales Tax Act, 1944 (Bihar Act VI [6] of 1944), hereafter referred to as the taxing Act. 2. The period of assessment is 1-10-1944, to 31-3-1945. The accepted gross turnover of the assessee company petnr. during this period is Rs. 3,41,98,000. Deduction is claimed under Sec. 5, Sub-section (2), Clause (a) (v) of the taxing Act in respect of a turnover of Rs. 2,93,15,000. Under this clause, the turnover of the assessee is exempted from liability to pay tax to the extent that it is derived from "sales of goods which are shown to the satisfaction of the Comr. to have been despatched by, or on behalf of, the dealer to an address outside Bihar." The exemption is claimed in respect of goods despatched by the assessee company to addresses outside Bihar in pursuance of an agreement between it & the Imperial Tobacco Company of India, Ltd. By this agreement, the assessee Company contracted to despatch the goods manufactured by it, on behalf of the Imperial Tobacco Company of India, Ltd. & in the name of that company, to destinations inside Bihar or out of Bihar according to the directions of that company, which on its side, agreed to pay to the assessee company by way of remuneration the full cost of manufacture plus 25 per cent of such cost. 3. The reference was first heard by my learned brother, Das & Sarjoo Prasad JJ. On a difference between them, it was referred to B. P. Sinha J., who while agreeing with Das J. & disagreeing with Sarjoo Prasad J. as to the correct interpretation of the relevant clause of the taxing Act, has on another line of reasoning arrived at the same conclusion as Sarjoo Prasad J. On the facts, all their Lordships are agreed that the transactions between the two companies amount to sales, & that the sales were completed & the property in the goods had passed to the Imperial Tobacco Company of India, Ltd., before the despatch of the goods. Das J. considered that the taxing Act, in accordance with the accepted principle of- construing such Acts, must be interpreted strictly in favour of the subject & therefore, the physical despatch of the goods by the assessee was "despatch" by him within the meaning of the relevant clause of the taxing Act. In the opinion of Sarjoo Prasad J., Sec. 5, Sub-section (2), Clause (a) (v) has no application where the sale is complete before the despatch of the goods, & the title is no longer in the vendor. B. P. Sinha J. pointed out that Sec. 5, Sub-section (2), Clause (a) (v) lays stress on the Comr. being satisfied as to the despatch being by the dealer or otherwise. He held that the H. C. is bound to accept the finding of the Comr. that the goods were physically despatched by the assessee but the despatch was made by him on behalf of the vendee; in other words, the despatch must be held to be despatch by the vendee & therefore, not entitled to exemption from sales tax. 4. A preliminary point has been raised as to whether the reference to B. P. Sinha J. was competent & whether there is a lawful decision of this Ct. disposing of the reference under Sec.21, Sub-section (3) of the taxing Act, in respect of which decision leave to appeal can be asked for. The provision for a reference to a. third Judge is contained in Clause 28, Letters Patent of this H. C. & Section 98, Civil P. C. Clause 28 relates to a difference of opinion arising in the exercise of the H. C.s "original or appellate jurisdiction". Section 98 relates to a difference arising in appeal; under Sub-section (3) this section is subject to the provisions in the Letters Patent. In Birendra Kishor V/s. Secretary of State, 48 Cal. 766 : (A.I.R. (8) 1921 Cal. 262) for the purpose of deciding whether counsel should be instructed by Vakil or by Attorney, a reference made under a similar provision in Sec. 51, Income-tax Act, 1918 (VII [7] of 1918) was treated as relating to the civil appellate jurisdiction of the H. C. This view was not accepted by Rankin & Page JJ. in Emperor V/s. Probhat Chandra Barua, 51 Cal. 504 : (A. I. R. (11) 1924 Cal. in Emperor V/s. Probhat Chandra Barua, 51 Cal. 504 : (A. I. R. (11) 1924 Cal. 668), which related to a difference of opinion in a similar reference under the Income-tax Act, 1922 (XI [11] of 1922). Relying on Tata Iron & Steel Co., Ltd. V/s. Chief Revenue Authority, Bombay, 50 I. A. 212 : (A. I. R. (10) 1923 P. C. 148), their Lordships held that this was a case of special jurisdiction to which the Code of Civil Procedure is not applicable, an opinion with which I respectfully agree. They held, however, that it was covered by Clause 36, Letters Patent (corresponding to Clause 28, Letters Patent of this Ct.) & disposed of the reference accordingly. The attention of their Lordships does not appear to have been drawn to the words "hereby directed" in the opening sentence of Clause 36. With respect, I would observe that the provisions in this clause relate to a difference of opinion arising in the exercise of a function which is directed by the Letters Patent to be performed by the H. C. in the exercise of its original or appellate jurisdiction. There is nothing in the Letters Patent providing for the exercise of the jurisdiction in question, it being a jurisdiction that is vested in the H. C. by a special statute. These observations apply also to the present case & Clause 28, Letters Patent of this Ct. 5. Recognition to the view which I have just expressed has been given by an amendment of the Income-tax Act, 1922, which was made in 1926. By this amendment, Sec. 66A was inserted providing, inter alia, for the procedure to be followed in the event of a differ-once of opinion between the Judges in the hearing of a reference under the Act. 6. In my opinion, neither Clause 28, Letters Patent nor Section 98, Civil P. C., has any application. There is no provision in the taxing Act similar to Section 66A, Income-tax Act, 1922. This, however, creates no difficulty. There being no procedure provided by law, it was open to my Lord the Chief Justice to mould a convenient form of procedure, vide Smith V/s. Williams, (1922) 1 K. B. 158: (91 L. J. K. B. 156), which was followed in Maharajadhiraja of Darbhanga V/s. Commissioner of Income-tax, 9 Pat. 240 at p. 277: (A. I. R. (17) 1930 Pat. 81 S. B.). 240 at p. 277: (A. I. R. (17) 1930 Pat. 81 S. B.). The preliminary objection, therefore, fails. 7. There is more substance in the further objection, also of a preliminary nature, that the appln. is not maintainable. In reply to the objection, it has been stressed by Mr. P. R. Das that the appln. is under Article 133, Const. Ind. which is wider in terms than the provision for appeal to the P. C. contained in the Letters Patent. It is pointed out that under Clause 31, Letters Patent an appeal lay from "any final Judgment, decree or order of the High Court at Patna made on appeal, and from any final Judgment, decree or order made in the exercise of original jurisdiction, etc.," whereas, under Article 133 an appeal lies from "any Judgment, decree or final order in a civil proceeding of a High Court". (The italics are mine). Sub-section (5) of Sec.21 of the taxing Act provides that the H. C. on the hearing of a reference, shall "decide" the question of law referred & shall deliver its "Judgment", which it shall send to the Board of Revenue & the Board shall dispose of the case accordingly, it is contended, the decision of the H. C. in this case is, therefore, a Judgment & since under Article 133 it is not necessary that the Judgment in question must be final, Tata Iron & Steel Co Ltd. V/s. Chief Revenue Authority, Bombay, (90 I. A. 212: A. I. R. (10) 1923 P. C. 148 supra), which was decided under the earlier law, has no application. In my opinion, that decision does not proceed merely on the fact that the "Judgment" sought to be appealed against was not final. That case related to an appeal from a decision of the Bombay H. C. upon a case stated by the Chief Revenue Authority under Sec. 51, Income-tax Act, 1918, the provisions of which were substantially the same as the provisions of the taxing Act. There, as here, it was provided that, on the hearing of the reference, the H. C. shall "decide" the question raised & shall deliver "Judgment" thereon containing the grounds on which the decision is founded, & shall send the Revenue Authority a copy of this "Judgment" under the seal of the Ct. There, as here, it was provided that, on the hearing of the reference, the H. C. shall "decide" the question raised & shall deliver "Judgment" thereon containing the grounds on which the decision is founded, & shall send the Revenue Authority a copy of this "Judgment" under the seal of the Ct. & the signature of the Registrar, & the Revenue Authority shall dispose of the case accordingly. For an appeal to lie under Clause 36 (39?) (corresponding to Clause 31, Letters Patent of this Ct.) it was necessary that the decision of the H. C. should be either a "final Judgment", or "final decree", or a "final order". Their Lordships first considered whether it was a "final Judgment" & answered the question in the negative. They commenced with the definition of "final Judgment" given by Lord Selborne in Ex parte Moore, 1885-14 Q. B. D. 627, that nothing more is necessary than a proper litis contestatio & a final adjudication between the parties to it on the merits --a definition applicable to the decision before their Lordships. Apparently, however, they preferred the definition given by Lord Esher, (Lord Lindley & Bowen L. J. concurring), in Onslow V/s. Commissioners of Inland Revenue, (1890) 25 Q. B. D. 465 : (59 L. J. Q. B. 556). That case concerned a decision of the Ct. of Exchequer on a reference under Sec.19, Stamp Act, 1870 (34 & 35 Vict. C. 7). Under that Act the Ct. was empowered to assess any duty it might decide to be chargeable on the instrument in question, and to order a refund if it found an excess charge to have been made; in the event of decision confirming the assessment, the costs of the Comrs. were payable by the opposite party. The Ct. decided in favour of Comrs. & the question arose whether the decision of the Ct. was a "Judgment" or an "order" for the purposes of appeal. Lord Esher came to the conclusion that it was not a "Judgment," observing : "A Judgment, therefore, is a decision obtained in an action, & every other decision is an order." Their Lordships of the Judicial Committee showed their acceptance of this definition by observing : "This decision clearly establishes that the decision & an order made by Ct. Lord Esher came to the conclusion that it was not a "Judgment," observing : "A Judgment, therefore, is a decision obtained in an action, & every other decision is an order." Their Lordships of the Judicial Committee showed their acceptance of this definition by observing : "This decision clearly establishes that the decision & an order made by Ct. under Sec. 51 of the jurisdiction (sci) cannot be held to be a final Judgment within the meaning of Clause 39, Letters Patent, since there is nothing to show an intention in the year 1862 to use those words in a sense more extended than their legal sense." They marked their acceptance of Lord Eshers definition by adding : "It is evident from this case of Onslow V/s. Commissioners of Inland Revenue, 1890-25 Q. B. D. 465 : (59 L. J. Q. B. 556), that the use of the words determine & decide, or the direction that money paid in excess is to be refunded or the awarding of costs against the unsuccessful party, are not things which distinguish a Judgment from an order where questions are referred to the Cts. by case stated. The word Judgment is indeed popularly used in many different senses, as when one says a certain man is a man of sound Judgment, meaning that he is possessed of the intellectul faculty of deciding rightly on facts or circumstances, or where even in legal matters the expression of the opinion formed in a case by a judge who dissents from his colleagues is commonly called his Judgment, though it can have no effect whatever on the determination of the suit or action in which it is delivered." 8. It is true that their Lordships concluded by deciding that the decision was not a "final Judgment," but this was because they were considering whether the decision was covered by Clause 36, Letters Patent, & that clause speaks of a "final Judgment." 9. My view of what their Lordships found is supported by their discussion of the provision in Sec. 51, Income-tax Act, that the H. C. shall "decide" & shall "deliver Judgment" & C., at the end of which discussion they remark: "It would appear clear to their Lordships that the word Judgment is not here used in its strict legal & proper sense. It is not an executive document directing something to be done or not to be done, but is merely the expression of the opinions of the majority of the judges who heard the case, together with a statement of the grounds upon which those opinions are based. It amounts only to a ruling that a certain deduction claimed by a tax payer to be allowed from the sum for which he has been already assessed to income-tax is not permissible." If the decision is only an expression of opinion it cannot be a Judgment. 10 In the course of considering whether the decision of the H. C. was a "final order" their Lordships referred to In re Knight and the Tabernacle Permanent Building Society, (1892) 2 Q. B. 613 : (62 L. J. Q. B. 33) and Peter Johnson V/s. Glassgow Corporation, 1912 S. C. 300 & pointed out that in spite of the use of terms "decision" & "determination" the function of the Ct. may be merely advisory, even though the opinion of the Ct. be binding on the functionary who states the case for decision & they ended up with a relevant citation from the Judgment of Lord Esher in the former case: " In the case of Ex parte County Council of Kent, 1891-1 Q. B. 725, where a statute provided that a case might be stated for the decision of the Ct. it was held that though the language might prima facie import that there has to be the equivalent of a Judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Ct. appealed to was only consultative, & that there was nothing which amounted to a Judgment or order." 11. Again, because of the terms of Clause 30, Letters Patent, their Lordships concluded that the decision of the H. C. was not "final order" but it appears from their Judgment that in their opinion the decision was neither a "Judgment" nor an "order". To exclude the application of Article 133, however, it is sufficient that the decision is not a "final order". 12. The words which their Lordships were interpreting were "final Judgment, decree or order" occurring in the Letters Patent of the H. C. We are concerned here with the same words in the same juxtaposition: "Judgment, decree or final order", & I would interpret them similarly. 12. The words which their Lordships were interpreting were "final Judgment, decree or order" occurring in the Letters Patent of the H. C. We are concerned here with the same words in the same juxtaposition: "Judgment, decree or final order", & I would interpret them similarly. The "Judgment" & the "decree" are no longer required to be "final" but that does not indicate that they are to be otherwise different in kind from the "Judgment" & the "decree" contemplated by the previous law. I am. strengthened in my opinion by Article 136, Const. Ind. providing for special leave to appeal from "any Judgment, decree, determination, sentence or order". The opinion expressed by the H. Cs. on a reference of the kind with which we are concerned would appear to be a "determination" within the meaning of this clause. 13. On the view I have taken, Article 133 has no application & it is not necessary to consider whether the proceeding in which that decision was given was a "civil proceeding" within the meaning of Article 133. It has been suggested that this term has been used in contradistinction to the term "criminal proceeding" in Article 134 which is not criminal. But Article 132 of the Constitution seems to contemplate that the H. C. may exercise jurisdiction in "other proceedings" besides "civil proceedings" & "criminal proceedings," & the special jurisdiction of the H. C. under the taxing Act may be one instance of such "other proceedings." In this respect Article 133 would not appear to be as wide as Clause 31, Letters Patent, which provides for appeals in regard to matters "not being of criminal jurisdiction." 14. Our attention has been drawn to the order of Agarwala C. J. & Nageshwar Prasad J. dated 9-3-1949, in granting leave to appeal in P. C. A. No. 71 of 1948. That was a case of an appeal against an order of this Ct. refusing to call upon the Board of Revenue to state a case under the Bihar Sales Tax Act, 1944 . That was a case of an appeal against an order of this Ct. refusing to call upon the Board of Revenue to state a case under the Bihar Sales Tax Act, 1944 . Their Lordships granted leave under Clause 31, Letters Patent, following a decision of a Full Bench of the Lahore H. C. the appeal in which case was dismissed on the merits by the Judicial Committee without deciding the "serious" question whether Clause 29, Letters Patent of the Lahore H. C. (corresponding to Clause 31, Letters Patent of this H.C) had any application. Feroze Shah V/s. The Commissioner of Income tax, 12 Lah. 166: (A. I. R. (18) 1931 Lah. 138 F. B.), Feroze Shah V/s. Commissioner of Income-tax, Punjab, 14 Lah. 682: (A.I.R. (20) 1933 P. C. 198). There is a considerable difference between an order refusing to call for a reference & a decision on a reference made, & the case of Tata Iron & Steel Co., Ltd. V/s. Chief Revenue Authority, Bombay, 50 I. A. 212: (A. I. R. (10) 1923 P. C. 148) is an authority that Clause 31, Letters Patent has no application to the latter. The decision in F. C. A. No. 71 of 1948 is clearly distinguishable & Mr. P. R. Das has not pressed this appln. as one under the Letters Patent. 15. In view of the opinion I have expressed, it is unnecessary to consider the final contention of the learned Advocate General that, on the merits, the petn. should be dismissed. Prima facie, a certificate would appear to be justified where three Honourable Judges of this Ct. have expressed differing views & such a larger sum of money is involved. Das, J. 16 I regret I am unable to agree with my learned brother as to the effect of the decision of their Lordships of the Judicial Committee in Tata Iron & Steel Co., Ltd. V/s. Chief Revenue Authority, Bombay, 50 I. A. 212: (A. I. R. (10) 1923 P. c. 148). No doubt, there are observations in the said Judgment, with particular reference to an English decision relating to the Stamp Act, 1870 (34 & 35 vict. C. 7), which seem to show that a Judgment is a decision obtained in an action, & every other decision is an order. No doubt, there are observations in the said Judgment, with particular reference to an English decision relating to the Stamp Act, 1870 (34 & 35 vict. C. 7), which seem to show that a Judgment is a decision obtained in an action, & every other decision is an order. But the decision itself was on the question whether the Judgment delivered by the H. C. on 28-2-1921, on a reference by case stated under Sec. 51, Income-tax Act, 1918, was a final Judgment within the moaning of Clause 39, Letters Patent of the Bombay H. C., corresponding to Clause 31, Letters Patent of the Patna. H. C. Lord Atkinson, who delivered the Judgment of their Lordships, thus phu 
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´. of State, A I. R. (21) 1934 pat. 589 : (154 I. C. 171). These are both decisions under Order 41, Rule 20, and decide that, where one of the holders of a decree has not been joined as respondent to the appeal and the time limited for appealing has elapsed, he is no longer "interested in the result of the appeal" and cannot be added as a party to the appeal under Order 41, Rule 20. The question arose in those decisions when the appellant was seeking to press his appeal against persons who had not been impleaded. The problem does not arise when all that the Court proposes is to exercise its power under Order 41, Rule 4, and to pass an order in favour of, and not against a person who is not a party to the appeal. 14. This brings me back to the first point, namely, the contention of the appellant, as owner of the O. T. Railway, that he is not responsible for the loss due to fall in prices unless it is shown that the O. T. Railway Administration was responsible for the delay. The point is of academic interest in view of my finding that the plaintiffs have failed to establish that they are entitled to any damages on this account. The point is of academic interest in view of my finding that the plaintiffs have failed to establish that they are entitled to any damages on this account. I may merely note briefly that; this contention is not open to the appellant in view of an admission made by his Advocate in the Court of the Subordinate Judge that "the defendant is liable for the late delivery" (I am citing from the Judgment of the learned Subordinate Judge,) The liability of the O. T. Railway Administration depended on certain facts, namely, that the delay occurred while the goods were in the custody of the O. T. Railway Administration. When the appellants lawyer made this admission, he must be taken to have made an admission of this necessary fact, and the appellant must be treated at this stage as bound by that admission. In the order-sheet of the learned Subordinate Judge dated 10-6-1946, with reference to a petition filed by the plaintiffs for the delivery of certain documents, the Subordinate Judge disallowed the petition, observing : "In my opinion these documents could have been necessary, provided the defendant company would have asserted that there was no negligence or misconduct on the part of the Railway in dealing with the consignment. In the present suit, I find as is also admitted by the learned Advocate for the defendant that there was late and short delivery of the goods consigned to the plaintiff." This shows that, even at an earlier stage, this position was taken up by the Advocate for the appellant. Had he contended that under Section 80, the appellant was not liable, it might have been open to the plaintiffs to take steps to bring the appellant on the record as representative of the other two Railways also. In these circumstances, It would not be fair at the appellate stage to permit the appellant to disclaim liability on this ground. 15 In the result, I would allow these appeals to the extent indicated, namely, that the decrees will be set aside so far as they relate to damages for late delivery. The principal amount of the decrees will, therefore, be Rs. 696 in Money Suit No. 11 and RS. 227 in Money Suit No. 1. The appellant will get his coats in this Court proportional to his success. The principal amount of the decrees will, therefore, be Rs. 696 in Money Suit No. 11 and RS. 227 in Money Suit No. 1. The appellant will get his coats in this Court proportional to his success. In accordance with Section 82, Civil P. C., it will further be directed that the decrees in these suits be satisfied within three months from today. Jha, J. 16 I agree.