JUDGMENT Mukul Gopal Mukherji, J.: This appeal has been sent back by the Hon'ble Supreme Court by its order dated 28.11.94 on the question of hearing of the objections of the respondents about the maintainability of the present appeal before the Division Bench against the impugned order of the Learned Single Judge rejecting the application for recalling the earlier order appointing the commission for taking down deposition of plaintiff's witness Mrs. Reba Bhowmick. The Hon'ble Supreme Court observed inter alia that since the question of maintainability of the appeal was yet to be ascertained by this Hon'ble Court, the Hon'ble Supreme Court, was of the view that this Court should consider the said question of maintainability and pending the hearing on the question of maintainability, the operation of the impugned order was stayed. The recording of the statement on deposition of Smt. Reba Bhowmick for commission was also stayed and liberty was given to mention the matter for hearing after the question of maintainability of the appeal was decided upon by this Hon'ble court. 2. It may be recalled that an application was made for examination of Mrs. Reba Bhowmick on commission on the ground of her illness as disclosed in the medical certificate dated 16.8.93. The prayer to examine her on commission was allowed by the Learned Single Judge's order dated 7.9.93. It is alleged by the appellants that subsequent thereto Mrs. Reba Bhowmick recovered from her illness and the self-same Doctor after another examination found her fit and issued a fitness certificate on 22.11.93. In view of the recovery from illness, it was contended by the appellants that the sole ground for issuance of the commission vanished and accordingly the appellants prayed for recall of the order of commission and alternatively there was a prayer for review of the earlier order dated 7.9.93. At the time of hearing, the appellants placed the application which now the appellants characterised as merely an application for recall and it was so decided by the Learned Single Judge that even though such an application was maintainable, the Learned Single Judge did not choose to interfere with the same. At the time of hearing, the appellants placed the application which now the appellants characterised as merely an application for recall and it was so decided by the Learned Single Judge that even though such an application was maintainable, the Learned Single Judge did not choose to interfere with the same. Relying upon the two cases reported in AIR 1930 Reng 315 (A.K.R.M.M.C. T. vs. MG BA CHIT) and AIR 1968 Del 226 (Narain Dass vs. Karan Chand), the Learned Single Judge accepted the submission to the effect that the Court could pass a different order from time to time as the situation might justly demand. The Court thus had jurisdiction to recall the order regarding issuance of a commission. However, the appellants lost on facts, the Learned Single Judge holding inter alia that application to recall should stand rejected. 3. To ascertain the truth, Appeal Court by order dated 3.10.94 appointed Medical Board consisting of eminent doctors to examine Mrs. Bhowmick and report, which direction she challenged by filing a special Leave application. The Supreme Court stayed the Medical Board as well as recording of her evidence on commission. The Supreme Court remanded the matter to this Court to decide about the maintainability of the appeal against the interlocutory order. 4. Mrs. Bhowmick challenged the maintainability on two grounds:-(i) The impugned order (refusing to recall the order of commission) is not "Judgment" within the meaning of the clause 15 of the Letters Patent and hence not appealable. (ii) Application made before the Trial Court was for review and no appeal lies against dismissal of the review petition. The Advocate General appearing for appellants contended that both the grounds are not sustainable in law and facts. 5. The appellants' submissions are to the effect that this is an internal appeal from Single Judge to Division Bench and governed by clause 15 of the Letters Patent. Clause 15 does not define the word 'Judgment' and what is a 'judgment' has been subject of controversy in the legal parlance for a considerably long time and such a controversy was settled by the Hon'ble Supreme Court in Khimji's case AIR 1981 SC 1786 . The said case arose out of an order of Division Bench of Bombay High Court holding that no appeal lies against dismissal of an application for appointment of Receiver and for interim injunction. 6. The said case arose out of an order of Division Bench of Bombay High Court holding that no appeal lies against dismissal of an application for appointment of Receiver and for interim injunction. 6. The said judgment is an authoritative pronouncement with regard to the scope, meaning, and ambit of the word, 'judgment' which controversy was continuing for over a century (para-12), as observed by the Apex Court at page 1790 of Khimji's case. 7. After laying down the guidelines in para-120 at page 1817 by way of illustration, Supreme Court laid down illustrative examples which may amount to judgment, at the same time in para-122 hastened to add that it is not possible to give an exhaustive list and it is well-nigh impossible for the court to provide for every possible contingency. 8. After discussing numerous cases, the Supreme Court adopted and approved the tests laid down by Sir White C.J. in Tuljaram's case reported in 1912 ILR 35 Mad (end of the para 118 at page 1817). The aforesaid tests of Justice White have been analysed in para 91 at page 1810. It would appear from para 91 (5) of the Khimji's case that "An order may be judgment even it does not effect the merits of the suit or proceedings and does not determine any right in question raised in the suit or proceedings." 9. The main judgment was written by Justice S. Murthaza Fazal Ali, Justice A.N. Sen concurring with the view, however, added his own reasons (para 132). In para 152 at page 1829 it is stated that in order to qualify as a judgment it has to satisfy two tests-(i) The judgment must be a final pronouncement and (ii) The judgment must involve some rights or liabilities, though it may not be necessary that there must be a decision on merits. 10. Mr. Das appearing for the respondents relied on para 82 of the Khimji's case (Tests laid down by Sir Couch C.J. in case of Justice of the Peace for Calcutta (1872-8 Beng. L.R. 433) which analysed and insisted that the decision should affect the merits of the question between the parties. 11. Such strict test had not even been adhered to and was departed by Couch C.J. himself who was author of the tests. L.R. 433) which analysed and insisted that the decision should affect the merits of the question between the parties. 11. Such strict test had not even been adhered to and was departed by Couch C.J. himself who was author of the tests. As recorded by the Supreme Court in para 86 of the Khimji's case i.e. "that strict construction has not been adhered to and was indeed often departed from by Couch, C.J. himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters of the actual dispute between the parties, were held by him to come within the category of judgments." 12. Sir Asutosh Mukherjee, J. modified the tests of Couch, C.J. by stating inter alia that the determination should not be restricted for the controversy in suit itself. Para-84 of Khimji's case is "In Chandi Charan Saha vs. Jnanendra Nath Bhattacharjee, 29 Cal LJ 225 : (AIR 1919 Cal 667) Sir Asutosh Mukherjee J. in his leading judgment modified the strict rule of interpretation of 'Judgment' laid down by Sir Couch, C.J. and pointed out that the words 'merit of the question between the parties by determining a right or liability'. were not to be confined or restricted to the controversy in a suit itself but could take within its fold any right involved in any application which puts an end to the suit or the proceedings. Sir Asutosh Mookherjee J. has widened the scope of the observations of Sir Couch C.J. and adopted some of the observations of Sir White, C.J. in Tuljaram Row's case (1912 ILR 35 Mad 1). 13. The strict tests laid down by the Couch, C.J. in para 82 has not been approved by the Supreme Court in Khimji's case. Supreme Court adopted the test of While C.J. as analysed in para 118 and the Supreme Court observation that "We would like to adopt and approve of generally the tests laid down by Sir White C.J. in Tuljaram Row's case which seems to have been followed by most of the High Courts......" 14. Mr. Das has agreed that since the impugned order was made under inherent jurisdiction it was not as such appealable. Mr. Das has agreed that since the impugned order was made under inherent jurisdiction it was not as such appealable. This contention is also not correct in view of the observations in para 91 and 152 of the Khimji's case which do not specify any section but lay down the tests and clearly state that what is important is not the form of the order but its effect. 15. It was submitted by the learned Advocate General for the appellants that the instant case fulfils the necessary characteristic of a judgment as stated in para 91 and para 152 of Khimji's case. 16. The impugned judgment involves determination of rights and liabilities as contained in Or. 18 Rr. 4, 11 and 12 of the Code of Civil Procedure and the question of jurisdiction of the Court to continue commission when the sole ground of commission i.e. illness vanished and right to have an open trial in case of fraud and dishonesty as laid down by the Hon'ble Supreme Court in AIR 1962 SC 406 (para 17) and AIR 1960 SC 1156 (Para 7). Admittedly in the instant suit the sole transaction is challenged on the ground of fraud. 17. According to the appellants the impugned order is also "final" and in the words of Justice Dr. Anand-'One mischief is done it cannot be undone' (AIR 1978 J & K 78, Para 5), "So in the instant case determination of rights and liabilities and the question of jurisdiction are involved and such determination is final and puts an end to the commission proceedings. So impugned order fulfils the criteria of a judgment as laid down in para 91 and 152 of the Khimji's case and as such is appealable. 18. The list as contained in paragraph 120 of the Khimji's case was further expanded by Division Bench of this Court in case of Indrajmal Sham Sukhs and Ors. vs. Bhagat Singh Dugar and Ors. reported in 1991 (2) CLJ, page 321, by holding two other types of orders passed in execution case as appealable. In para 11, Justice Bhattacharjee agreed with the view followed by Rajkhowa, J. that if two views are possible relating to appealability of an order, the one in favour of an appeal is generally accepted. 19. Mr. reported in 1991 (2) CLJ, page 321, by holding two other types of orders passed in execution case as appealable. In para 11, Justice Bhattacharjee agreed with the view followed by Rajkhowa, J. that if two views are possible relating to appealability of an order, the one in favour of an appeal is generally accepted. 19. Mr. Das appearing for the respondents has cited cases relating to the period from 1933 to 1972, all of which according to the learned Advocate General no longer remain relevant in view of the authoritative pronouncement made by the Hon'ble Supreme Court in Khimji's case. 20. Mr. Das contended that under Or. 47 R. 7 of the Code of Civil Procedure, no appeal is maintainable against an order dismissing a review application. That apart, no appeal is provided under the statute against such order under the provisions of Or. 43 R. 1 of the Code of Civil Procedure. As to whether the order would still be appealable in the category of a 'judgment' within the meaning of clause 15 of the Letters Patent, Mr. Das contended that this is a purely procedural matter not touching the merits of the controversy between the parties in the main suit by deciding any right or liability in the pending proceeding, but is merely a step for carrying the proceeding further in the matter of trial of the suit and even if a right is involved at all, such a right is not one of the ingredients of the definition of "judgment" within the meaning of clause 15 of the Letters Patent. 21. The principal reason why procedural questions relating examination of a witness on commission do not qualify as "judgment" under clause 15 of the Letters Patent is because the Supreme Court itself observed in the case of Filmistan Private Ltd. vs. Bhagwandas, reported in 1970(3) SCC 258 in a matter relating to examination of witness outside the country in Kabul on Commission that the order under appeal is essentially a discretionary order and the Supreme Court did not think that any case was made out for interference with the discretion of the Learned Trial Judge. The fact that the witnesses examined on Commission could not be effectively cross-examined or their cross-examination would entail heavy costs were found not to be sufficient circumstances to interfere with the discretion of the Learned Trial Judge. 22. Mr. The fact that the witnesses examined on Commission could not be effectively cross-examined or their cross-examination would entail heavy costs were found not to be sufficient circumstances to interfere with the discretion of the Learned Trial Judge. 22. Mr. Das contended that while examining a witness on Commission just because it will not be open to the Hon'ble Judge to observe or record the demeanour of the witness would not make out a sufficient case to characterise the order dated 20.7.94 as an appealable one since this order had nothing to do with the question of demeanour but was merely an order refusing to review or recall an earlier order. 23. Turning to the legal aspect of the matter, Mr. Das contended that the word 'judgment' has not been defined any where in the Letters Patent but over the years the Hon'ble Courts have laid down certain guidelines for deciding as to whether an order would amount to a judgment under clause 15 of the Letters Patent. He also placed before us the decisions in Asrumati Devi vs. Rupendra Deb Raikot, reported in AIR 1953 SC 198 ; Nurul Hoda vs., Amir Hasan reported in AIR 1972 Cal 449 (FB) and Sha Babulal Khimji vs. Jayaben reported in AIR 1981 SC 1786 , the last of which was consciously referred to by the Learned Advocate General in support of his contentions. 24. All these decisions have almost given the same reasoning to decide as and when an order would amount to a judgment within the meaning of clause 15 of the Letters Patent and they also laid down certain guidelines for determining this question. 24. All these decisions have almost given the same reasoning to decide as and when an order would amount to a judgment within the meaning of clause 15 of the Letters Patent and they also laid down certain guidelines for determining this question. These guidelines have also been summarised by a Full Bench of our Court in Nurul Hoda vs. Amir Hasan, reported in AIR 1972 Cal 449 as follows :- (a) Whether the order in question puts an end to the proceeding so far as the Court dealing with it is concerned in which the order was sought and made; (b) The order must involve determination of some right or liability affecting the merits; (c) An adjudication or a decision which is not anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding is not a judgment within the meaning of the Letters Patent; (d) Whether the decision involves adjudication on the question of limitation or jurisdiction of the Court in certain cases, such decision would amount to judgment. 25. The two decisions of the Supreme Court in Asrumati Devi vs. Rupendra Deb Raikot (ibid) and Sha Babulal Khimji vs. Jayaben (ibid) noted above without expressly referring to the said Full Bench decision of the Calcutta High Court have also laid down the same• rules and there is no conflict as to the guidelines in any of these decisions. 26. In AIR 1981 SC 1786 i.e. Khimji's case the rules laid down in the earlier decisions particularly those in the Oriental Gas Company's case (Per Sir Richard Couch C.J.) and in Tuljaram Row's case (per White C.J. ILR 35 Mad IFB) have been approved and followed and it has further been added at para 119 that "any discretion exercised or routine order passed by the Trial Judge in course of the suit which causes some inconvenience or to some extent prejudices one party or the other can not be treated as a judgment," otherwise the Appeal Court or the Division Bench will be flooded with appeals from all kinds of orders passed by the Trial Judge, and the Court must give sufficient allowance to the Trial Judge and raise a presumption that any discretion which it exercised must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice." 27. Likewise in Asrumati's case reported in AIR 1953 SC 198 , B.K. Mukherjee, J. (as he then was) took great pains to point out that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in suits is not a "judgement" within the meaning of the Letters Patent. This observation was made in the context of an order which transferred the suit from Jalpaiguri to this Hon'ble Court for trial and disposal under clause 13 of the Letters Patent and it was held that such an order does not decide the merits of the controversy between the parties to the suit nor does it determine any right or liability relating to the merits nor does it terminate or dispose of the suit on any ground and therefore the order in question is not a judgment. 28. Likewise in the Full Bench decision of this Hon'ble Court reported in AIR 1972 Cal 449 Sabyasachi Mukherji, (as His Lordship then was) pointed out that in the context of that case an order of the Learned Trial Judge setting aside the abatement of a suit and directing the suit to proceed to trial would not be a "judgment" within the meaning of clause 15 because the order in question does not touch the merits of the controversy between the parties in the suit nor does it determine any right or liability of the parties in the suit nor does it finally put an end to the suit but is merely a procedural matter which has the effect of carrying the suit forward for trial and therefore none of the tests for deciding what is a "judgment" under clause 15 of the Letters Patent applies to such an order. Thus the very same reasoning is fully applicable to the instant case because all that the Hon'ble Justice Ajoy Nath Ray has done is that he has merely refused to recall or review the earlier order passed by Susanta Chatterjee, J. for the reasons and on the grounds stated in the order under appeal and, therefore, all the tests mentioned above go to show that the order of Ajoy Nath Ray, J. is not an appealable order, but is merely a procedural matter dealing with steps to be taken for bringing the suit to trial and final hearing. 29. 29. It is well settled that an order refusing to review an earlier order on a Memorandum of Review filed under Or. 47 of the Code of Civil Procedure itself because Or. 47 R. 7 creates an express bar to the maintainability of an appeal against an order rejecting the Memorandum of Review and Or. 43 R. 1 of the Code of Civil Procedure does not provide for an appeal against the order rejecting a review petition. 30. Likewise it is equally well settled that an order rejecting a Memorandum of Review is not appealable under clause 15 of the Letters Patent because the two following cases have held that if a Memorandum of Review is dismissed, then this does not amount to a "judgment" within the meaning of clause 15 of the Letters Patent : (a) 12 Sutherland's Weekly Reporter 459 (Musst. Raghoo Bibi vs. Noor Jahan Begum) in which the Special Bench of three Learned Judges of this Hon'ble Court took the view that rejection of a Memorandum of Review is not an appealable order under clause 15 of the Letters Patent: (b) AIR 1954 Mad 642 D.B. (Chinnadora vs. Doraisundram) also held that an appeal against an order rejecting the Memorandum of Review is not maintainable under clause 15 of the Letters Patent. 31. Under these circumstances the only question that remains to be answered is whether or not an appeal is maintainable under clause 15 of the Letters Patents if the Learned Trial Judge refuses to recall or set aside an earlier order passed by him in the exercise of his inherent powers under s. 151 CPC. The Supreme Court as also several High Courts have uniformly held that no appeal is maintainable under clause 15 of the Letters Patent from an order passed under s. 151 of the Code of Civil Procedure and reference was made to the following decisions in AIR 1953 SC 23 Kheshordeo Chamria vs. Radhakissen Chamria, AIR 1946 Cal 488 (DB) (Keshordeo Chamria vs. Radha Kessen Chamria); the appeal against this judgment of the Calcutta High Court was dismissed by the Supreme Court in AIR 1953 SC 23 Keshordeo Chamria vs. Radhakissen Chamria and AIR 1953 Pat 139 (DB) (Banwarilal vs. Shukrulla); AIR 1953 Bom 117 (DB) (Joyhind Iron Mart vs. Tulsiram). 32. 32. On the question of what is a "judgment" within the meaning of clause 15 of the Letters Patent, the Appellants have relied on the following decisions in AIR 1981 SC 1786 ; Sha Babulal Khimji vs. Jayaben, 1991 (2) CLJ 331: Indrajmel Sham Sukhs & Ors. vs. Bhagat Singh Dugar & Ors. and AIR 1978 J.K. 78: Sri Ram vs. Ashwani Kumar. 33. So far as the first of these decisions is concerned i.e. AIR 1981 SC 1786 : Sha Babulal Khinji vs. Jayaben, this is the leading case on the subject and the respondents also relied on the very same decision in support of their argument that the order in question is not a 'judgment' within the meaning of clause 15 of the Letters Patent and none of the propositions laid down by the Supreme Court in this decision is disputed by the respondents. 34. So far as 1991 (2) CLJ 331 : Indrajmal Sham Sukha & Ors. vs. Bhagat Singh Dugar & Ors., case is concerned this decision is not a proper guideline for answering the question as to what is the meaning of "judgment" under clause 15 of the Letters Patent because the two learned Judges who delivered two separate judgments in the matter have not taken the same view on this point. The Hon'ble Justice Ajoy Nath Roy on the question of maintainablity of an appeal under clause 15 of the letters Patent and accordingly this decision does not help us to come to a definite proposition of law. 35. So far as Sriram vs. Ashwani Kumar reported in AIR 1978 J & K 78 is concerned that was not a decision relating to clause 15 of the letters Patent at all but the decision turned on the meaning of the words "case decided" in s. 115 of the Code of Civil Procedure relating to the Revisional Jurisdiction of the High Court. The decision was rendered by a learned Single Judge of the High Court of Jammu and Kashmir and not by a Division Bench and accordingly there was no occasion to consider the meaning of the word "judgment " under clause 15 of the letters Patent but it was more or less a decision on s. 115 of the Code of Civil Procedure. 36. 36. The appellants in the course of argument have also referred to the following decisions in AIR 1968 Del 226 : Narain Das vs. Karan Chand; AIR 1930 Reng 315: AKR. M.M.C. T. vs. MG BA CHIT: AIR 1923 PC 73 Sukesh Ch. Chatterjee & Ors. vs. Kumar Sukesh Kanta Roy & Anr.: AIR 1960 SC 1156 , The Printers (Mysore) P. Ltd. vs. Pathan Joseph and AIR 1962 SC 406 : Abdul Kadir vs. Madhav Prabhakar. 37. None of these decisions lay down any guidelines for determining of the word "judgment" under clause 15 of the letters Patent. Thus the Delhi High Court and Rengoon High Court decisions are on an entirely different point i.e. whether or not the learned Single Judge has the power to recall the earlier order passed by him in the exercise of his inherent jurisdiction under s. 151 of the Code of Civil Procedure. That the Court has such power is not disputed but what is disputed is when the Court refuses to recall an earlier order, is the appeal therefrom maintainable. The two decisions do not touch this question. Similarly the decision of the Privy Council was concerned with the scope and effect of an order directing the examination of a witness on commission and not the meaning of the word "judgment" under clause 15 of the letters Patent. The issue now before the Division Bench does not relate to the scope and effect of Or. 26 of the Code of Civil Procedure directing the issue of a commission to examine the witness. This subject is a closed one in view of the earlier order passed by the Hon'ble Justice Susanta Chatterjee which allowed the application for commission and an appeal from such order was dismissed as withdrawn. Finally the two decisions of the Supreme Court in AIR 1960 SC 1156 and AIR 1962 SC 406 were decisions under the Arbitration Act and have nothing whatsoever to do with the question now being decided before the Appellate Court. It was held in these two decisions that in an arbitration matter a party charged with fraud has the right to have the case decided in Open Court under the Code of Civil Procedure and not within the closed doors of an Arbitration Tribunal and accordingly an application for stay of the suit under s. 34 of the Arbitration Act should be refused. These questions do not arise in the instant matter relating to the maintainability of the appeal under clause 15 of the letters Patent and the two decisions are, therefore, of no assistance to us in deciding the point and the Code of Civil Procedure in Or. 26 expressly provides that in the case of sick or old or infirm witnesses, he or she may be examined on commission and once such an order for examination on commission has been made, no appeal lies therefrom nor is an appeal maintainable against the subsequent order refusing to review or recall the earlier order passed for examination of the witness on commission. 38. Finally, if one looks at the order of the learned Trial Judge from whose order the appeal has been filed and in respect whereof the question of maintainability of such appeal is now being debated before us, it is clear that the learned Single Judge has refused to review or recall the earlier order directing the issue of commission on the factual ground that there is no credible or reliable or trustworthy material before the Court for recalling the earlier order of his predecessor Single Judge for examination of the witness on commission. These facts on which the learned Judge has relied upon cannot now be gone into because the matter is pending before the Hon'ble Supreme Court of India with regard to the correctness or otherwise of these facts and the only question which the Supreme Court has directed us to prove through is against the order of the Learned Single Judge dated 20th July, 1994 on the question of appeal being at all maintainable. We hold that the appeal is not maintainable either under the Code of Civil Procedure or under clause 15 of the Letters Patent and we hold in favour of the respondents that the order in question does not amount to a "judgment" within the meaning of clause 15 of the Letters Patent and, therefore, it is a non-appealable order. 39. In the result we hold that the appeal is not maintainable as such. There will be no order as to costs. Let a xerox copy, only certified be made available to both the parties at the earliest. 40. Sidheswar Narayan, J.: I agree. Appeal held not maintainable.