Judgment :- K. Gnanaprakasam, J. 1. The appellants have preferred these appeals as against the communication dated 11.02.1999 of the Deputy Registrar of Trade Marks, communicated through the Assistant Examiner of Trade Marks stating that the Review Petition dated 12.10.1998 filed by the second respondent has been taken on record by the first respondent. 2. The appellants have also preferred the appeals in respect of the communication of the even dated by the Deputy Registrar of Trade Marks communicated through Assistant Examiner of Trade Marks, calling upon the appellants to submit their statements in reply to the Review Petition of the respondents, within thirty days. 3. The issues involved in both these appeals and the parties are one and the same and hence, the appellants and the respondents have agreed that both the appeals can be heard together and a common order may be passed. The facts, which are necessary and essential to approach these appeals are summarised hereunder. 4. Sons of one R. Ramaswamy Gounder viz., R. Ramachandran and R. Kumaravelu were carrying on business in the manufacture of electrical motors and pumps as partners, as per respective deeds of partnership (1) 01.01.1972 - Texmo Industries (2) 12.03.1981 - Aqua Pump Industries (3) 12.11.1982 - Aqua Sub-Engineering They were carrying on the Trade Mark under the name of "Texmo Industries" and also obtained trade marks under the Trade and Merchandise Marks Act, 1958 (herein after called as the "Act") on 21.05.1976. Trade Mark No.315049 is related to TEXMO Device on an inverted triangle and Trade Mark No.315050 is related to TEXMO word per se. Though Ramachandran and Kumaravelu were exclusively entitled to use the above said two trade marks, Aqua Pump Industries and Aqua Sub-Engineering were licensed to use the above said two marks as joint proprietors of the trade marks by partners in these two firms as well. Royalty was paid at the rate of 1% of the turnover. The goods manufactured in Aqua firms were different from the goods manufactured from by Texmo Industries. 5. Rama chandran died on 06.06.1986 and on his death, his wife Damayanthi Ramachandran stepped into the shoes of late Ramachandran and her name was also entered in the Trade Mark Register in the place of Ramachandran as joint proprietor along with Kumaravelu. The goods manufactured in Aqua firms were different from the goods manufactured from by Texmo Industries. 5. Rama chandran died on 06.06.1986 and on his death, his wife Damayanthi Ramachandran stepped into the shoes of late Ramachandran and her name was also entered in the Trade Mark Register in the place of Ramachandran as joint proprietor along with Kumaravelu. In the year 1989, the parties have decided that the rights of the various firms required clear cut demarcation and in pursuance of the same, they have entered into a family arrangement on 06.05.1989 which was duly signed by Kumaravelu and Damayanthi Ramachandran. 6. As per the above said family arrangement, Texmo Industries shall be the exclusive domain of Damayanthi Ramachandran and her parties. 7. The two Aqua firms shall be the exclusive domain of Kumaravelu and his parties. 8. Kumaravelu will retire from Texmo Industries and reciprocally, Damayanthi Ramachandran from Aqua Firms. Pursuance to the family arrangement dated 04.05.1989, four documents came to be executed in between the parties on 24.05.1990 giving effect to the same from 01.04.1990. 9. The first agreement was in between Kumaravelu and Damayanthi Ramachandran prescribing the area of ownership of the Trade Mark for Texmo Industries and the two Aqua firms in respect of the goods and the details of the goods were set out in Schedule I, II and III. In respect of the products set out in Schedule I and II, Aqua firms will become the sole proprietors of the Trade Mark and in respect of the products set out in Schedule III, the Texmo Industries will become the absolute owner. 10. It is stated by the appellants that in pursuance of the above said agreement, Aqua firms stopped the payment of Royalty to Texmo Industries on and from 01.04.1990. Though the Texmo Industries manufactured the goods set out in Schedule I and II, they have not used the trade mark of "Texmo Industries" and they used the trade mark of "TARO". Kumaravelu retired from the partnership of Texmo Industries and paid a consideration of Rs.1, 00, 000/- to Damayanthi Ramachandran, and the two Aqua firms acquired the right to use the registered trade mark in respect of the goods mentioned in Schedule I and II. 11. On the date of the execution of the above said agreement, three further agreements came into existence as deed of partnership and retirement. 11. On the date of the execution of the above said agreement, three further agreements came into existence as deed of partnership and retirement. All the three firms were re-constituted in such a manner i.e. from Texmo Industries, Kumaravelu retired and similarly from the Aqua firms Damayanthi Ramachandran and her parties have retired. Consequently, Texmo Industries became the sole domain of Damayanthi Ramachandran and Aqua Firms became the sole property of Kumaravelu. But, however, they have agreed to use the two registered trade marks for all three firms in respect of the products specified in Schedule I, II and III. In pursuance of the above said agreements, Kumaravelu gave an application in Form 36 on 26.03.1998 in respect of two registered Trade Marks Nos.305049 and 305050 to the Registrar of Trade Mark, Mumbai, who has passed an order on 20.04.1990 which runs as follows: (1) Aqua Pump Industries - In respect of items in Schedule I and trade marks are 315049 (SP-I) and 305050 (SP-I). (2) Aqua Sub-Engineering - In respect of items in Schedule II and Trade Mark Nos. are 315049 (SP-II) and 305050 (SP-II). 12. It is also stated that at the instance of Damayanthi Ramachandran, an order was passed by the Registrar of Trade Marks on 02.07.1998 by which, the name of Kumaravelu was deleted as a joint proprietor of Texmo Industries. Consequent to the same, the trade marks numbers were allotted to the respective industries as set out hereunder: S. No. Trade Mark No. In the name of With respect to 1. 315049 & 315050 Texmo Industries Goods in Schedule III 2. 315049 (SP-I) & 315040 (SP-I) Aqua Pump Industries Goods set out in Schedule I 3. 315049 (SP-II) & 315050 (SP-II) Aqua Sub-Engineering Goods set out in Schedule II 13. The splitting up of the Trade Mark was duly published in the Trade Mark journal 1181 of 16.08.1998 at page 1179. 14. On noticing the said publication, the respondent herein filed a review petition before the Assistant Registrar on 14.09.1998 and the same was returned by the Registrar by his communication dated 11.12.1998 stating that the petition was wrongly filed before the Registrar at Mumbai. It is further notified that appropriate office for the said purpose is at Chennai. But, however, the respondent by way of abundant caution filed an application before the Registrar of Trade Marks at Chennai on 12.10.1998. It is further notified that appropriate office for the said purpose is at Chennai. But, however, the respondent by way of abundant caution filed an application before the Registrar of Trade Marks at Chennai on 12.10.1998. The said petition was taken on file by the Registrar of Trade Marks and notice was ordered on 11.02.1999. 15. The appellants have also filed C.M.P. Nos. 6378 and 6379 of 1999 in T.M.A. Nos. 1 and 2 of 1999 respectively, to which, the respondents filed a common counter wherein they have set out their case as follows: The respondents have admitted the partnership in between R. Ramachandran and Kumaravelu and the registered trade mark Nos.315049 and 315050. On the death of Ramachandran, on 06.09.1986, his wife Damayanthi Ramachandran was inducted as a partner by the deed dated 29.01.1987. On the retirement of Kumaravelu, from the above said firms. P.T.Krishnan and R. Ravikumar were inducted as partners of the said firm through the deed dated 24.05.1990. Consequent to the petition, Form TH 24 dated 16.06.1997 was filed before the Registrar and the same was recorded on 02.07.1998. 16. The respondents further stated that there was an agreement dated 24.05.1990 by which, Kumaravelu and the respondents have agreed to make use of the trade marks which was initially registered in the name of Texmo Industries, for the common benefit of their respective business. The respondents never agreed for an assignment and there was no assignment of trade marks. 17. While so, the respondents came to know through the advertisement dated 16.08.1998 published in the Trade Mark Journal 1181 that R. Kumaravelu and Dr. H.S. Adenwalla said to be the trustees of the trust "Marigold" and M/s. Homai Kumaravelu said to be the trustee of another trust "Chrysanthenu" have recorded as subsequent proprietors of trade marks 315049 and 315050 in respect of the goods mentioned therein about which, the respondents had no earlier knowledge and they were not put on notice of the same. Immediately, on noticing the advertisement in the Trade Mark Journal, the respondents filed the review petition before the Registrar of Trade Marks at Mumbai. 18. On receipt of the notice in the petitions filed by the respondent, the appellants appeared before the first respondent and took time for filing counter in the said review petitions. After having taken time, the appellants have preferred these appeals. 18. On receipt of the notice in the petitions filed by the respondent, the appellants appeared before the first respondent and took time for filing counter in the said review petitions. After having taken time, the appellants have preferred these appeals. It is stated that these appeals are directed against the notice of the first respondent and no order or decision has been passed by the first respondent and therefore, these appeals are not maintainable. 19. Thiru. U.N.R. Rao, learned Senior Advocate for the Appellants, has submitted that the respondent has filed the review petitions on the basis of the publication dated 16.08.1998 in the Trade Mark Journal and contended that it was not the date of decision of the Registrar of Trade Marks. The decision was taken on 20.04.1998 itself, and the publication was made on 16.08.1998 and therefore, the date of the publication cannot be equated to the date of the order to prefer a petition. By making such submission, the learned Senior Advocate has admitted the respondents' right to file a Review on the decision dated 20.04.1998 as the same is available under Rule 115 of the Trade and Merchandise Marks Rules, 1959 which reads as follows: "An application to the Registrar for the review of his decision under Clause (c) of Section 97 shall be made on Form TM-57 within one month from the date of such decision or within such further period not exceeding one month thereafter as the Registrar may on request allow, and shall be accompanied by a statement setting forth the grounds on which the review is sought". As the respondent has not filed the review petition within the time limit prescribed in the Rule, the petition is out of time and not maintainable. 15. Answering to the above said contention, Thiru. K.V. Venkatapathi, learned Senior Advocate representing the respondents, has submitted that the order said to have been passed by the Registrar of Trade Marks, Mumbai in favour of the appellants was passed at the back of the respondent and no notice has been sent to them calling for objections, if any, before passing an order. K.V. Venkatapathi, learned Senior Advocate representing the respondents, has submitted that the order said to have been passed by the Registrar of Trade Marks, Mumbai in favour of the appellants was passed at the back of the respondent and no notice has been sent to them calling for objections, if any, before passing an order. The respondent came to know of the order only when they have noticed the publication in the Trade Mark Journal dated 16.08.1998 and on noticing the said advertisement, they have preferred the Review Petition before the Authority at Mumbai on 14.09.1998 and also before the Authority at Chennai on 12.10.1998. They have filed the Review Petition from the date of knowledge of the order i.e. the date of publication of the order and hence, the Review Petition is well within time. 16. The learned Senior Advocate for the appellants, has further submitted that the person who has filed the Review Petition had no Power on the date of the filing of the Review Petition and therefore, the Review Petition is not maintainable. 17. The respondent has submitted that the Review Petition was filed on 14.09.1998 before the Registrar of Trade Marks at Mumbai. The said petition was filed by the respondent's Attorney A.V.S. Rama Sarma. The respondent has filed Additional typed set in which, pages 1 to 4, the form of authorisation of Agent in a matter of proceeding under the Act (Under Form TM-48) was given by the respondent on 20.08.1998 to the Firm of DePENNING AND DePENNING AT Mumbai, Calcutta and also at Chennai and Mr. Arun K. Banerjee and others at Chennai, including A.V.S. Rama Sarma, were appointed as agents, jointly and severally is available. The said firm filed review petition before the Registrar of Trade Marks on 12.10.1998. It is therefore submitted that on the date of filing of the review petition, A.V.S. Rama Sarma, was duly authorised by the respondent to file the Review Petition and therefore, the submission of the appellants is unsustainable. 18. The learned Senior Advocate for the respondent has further submitted that the applications said to have been filed by the appellant for the change of names in the Trade Mark, would amount to the registration of Trade Mark, which would fall under Chapter 3 of the Act. 18. The learned Senior Advocate for the respondent has further submitted that the applications said to have been filed by the appellant for the change of names in the Trade Mark, would amount to the registration of Trade Mark, which would fall under Chapter 3 of the Act. Section 18 of the Act postulates that: "Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trade mark either in Part A or in Part B of the register". The applicant is entitled to withdraw the same before the registration under Section 19 of the Act. If the application for registration of Trade Mark is accepted, the Registrar shall cause the application as accepted together with the conditions or limitations if any subject to which it has been accepted, to be advertised in the prescribed manner. Section 21 of the Act prescribed for the registration which states: "Any person, may within three months from the date of the advertisement or re-advertisement of an application for registration or within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the Registration" . It is suggested that as per Section 21(1) of the Act, the opposition for registration could be made within three months from the date of advertisement. In our case, the advertisement in the Trade Mark Journal was made on 16.08.1998 and the application for Review was filed before the Registrar of Trade Marks Mumbai on 14.09.1998 and at Chennai on 12.10.1998 and therefore, the Review Petition is in time. 19. It is further argued on behalf of the respondent that under Article 123 of the Limitation Act 30 days time is given to set aside a decree passed ex parte. In column 3 of the said Article, it is stated that the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. In column 3 of the said Article, it is stated that the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. It is therefore, submitted that the Review Petition was filed within 30 days from the date of knowledge of the decree and hence, the Review Petition is in time. 20. The appellant has met the above said argument by pointing out that the Trade and Merchandise Marks Act, 1958 in a special enactment, which would override the General enactment and that therefore, the limitation set out in the Act alone is applicable and the law of limitation is not applicable. 21. The respondents further contended that the Appeal provision is set forth in Section 109 of the Act. Section 109(2) of the Act states: "Save as otherwise expressly provided in sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court within the prescribed period from any order or decision of the Registrar under this Act or the rules made thereunder: To file an Appeal, there must be an order or decision. But, no order or decision has been passed by the Registrar in the Review Petition filed by the respondent and in the absence of any decision or order, no appeal shall lie to the High Court and therefore, the appeal itself is not sustainable. The appellants have misconceived their remedy and filed these appeals before any decision or order having been passed by the Registrar. 22. The Review Petition filed by the respondent has been taken on record and the appellants have been called upon to submit their statements in reply for the same within 30 days. Here receipt of the petition and taken on record and calling upon the appellants to file their statements in reply, would not amount to any decision or order as contemplated under Section 109(2) of the Act and therefore, the appeal is ill conceived. 23. The learned advocate for the appellants in reply has submitted that Section 109(1) of the Act contemplates three situations 1. Decision 2. Order 3. Direction and the appellants would fall within the ambit of Direction and therefore, the appeal filed by the appellants are maintainable. 23. The learned advocate for the appellants in reply has submitted that Section 109(1) of the Act contemplates three situations 1. Decision 2. Order 3. Direction and the appellants would fall within the ambit of Direction and therefore, the appeal filed by the appellants are maintainable. But, whether the Appeals filed by Appellants would fall under Section 109(1) or 109(2) of the Act would arise for the consideration. 24. I have carefully considered the rival submissions of the learned counsel for the appellants and the respondents. 25. The appellants and the respondents, though made an elaborate argument, about the background of the case and the Agreements interparties have agreed to restrict their argument on two grounds i.e. 1. Whether the appeal is maintainable, in the absence of any order or decision? 2. Whether the Review Petition filed by the respondent is time barred and hence it should not have been entertained by the Registrar of Trade Marks? 26. Point No.1 Now, the question is whether the taking of the Review Petition on record and calling upon the appellants to file their statement would amount to decision, order or direction as contemplated under Section 109(1) of the Act. Whether the appeal would lie under Section 109(1) or 109(2) of the Act is to be seen. It is clear that the appeal to the High Court could be made only under Section 109(2) of the Act, and in fact, the Appellants have also filed the Appeals only under the said Section. Even otherwise, Section 109(1) is not a relevant section. Section 109(2) of the Act stipulates that an Appeal shall lie only against any order or decision. 27. The valuable right of the appellants to prefer an appeal before this Court, should be based upon any order or decision. The learned Advocate for the appellants made much emphasis that the Registrar "calling upon the appellants to file a reply" itself is a direction and therefore, they are well within their right to approach this Honourable Court by way of an Appeal under Section 109(1) of the Act. 28. As I have already come to the conclusion that Appeal shall lie only under Section 109(2) of the Act, the argument of the appellants, that the Registrar calling upon them to file a reply would amount to decision is not available to them and I am unable to accept the said argument. 29. 28. As I have already come to the conclusion that Appeal shall lie only under Section 109(2) of the Act, the argument of the appellants, that the Registrar calling upon them to file a reply would amount to decision is not available to them and I am unable to accept the said argument. 29. Section 109(2) of the Act contemplates only two situations to prefer an appeal before this Court i.e. there must be an order or decision. Can the letter sent by the Registrar of Trade Marks calling upon the appellants to file their statements would amount to an order or decision in a question posed before this Court. A vital question was put by the respondent by stating that only on the order or decision of the Registrar, the appellants can approach this Court and no such order or decision has been passed and the appellants have not filed any such impugned order. It has also been canvassed on behalf of the respondent that mere calling upon the appellants to file their reply would not amount to an order or decision, at any stretch of imagination. In fact, the appellants were given an opportunity either to agree or oppose the Review Petition and on the receipt of such a letter, the appellants have rushed to the Court and filed these appeals. These appeals are the outcome of sheer misapprehension. 30. To strengthen and support the case, the learned Senior Advocate for the respondent, relied upon the case of M/s. Ratan and Co. v. P. Narayanan, 1977 AIR(Delhi) 93 wherein the definition of "decision" is given which states:" A decision means a concluded opinion. It is an authoritative answer to the question raised before a Court. It is the settlement of a controversy submitted to it. Decision implies the exercise of a Judicial determination as the final and definite result of examining a question. An order granting extension of time is not of such a nature. It is not such a decision as to give the aggrieved person a right to appeal. It is just a procedural order in aid of proceedings." 31. The word" order"is defined" An authoritative direction, instruction". The Word "decision" is defined " 1. The Act or process of deciding 2. A conclusion or resolution reached, esp. as to future action, after consideration (have made my decision) 3. It is just a procedural order in aid of proceedings." 31. The word" order"is defined" An authoritative direction, instruction". The Word "decision" is defined " 1. The Act or process of deciding 2. A conclusion or resolution reached, esp. as to future action, after consideration (have made my decision) 3. (Often followed by of) a. the settlement of a question b. formal judgment 4. A tendency to decide firmly, resoluteness "(The Concise Oxford Dictionary - 1990s Edition) Hence, the respondent has submitted that there is neither an order nor a decision, which could be appealed. 32. On the contrary, the appellants relied upon the decision rendered in Hindustan Embroidery Mills Pvt. Ltd. v. Hemla Embroidery Mills Pvt. Ltd. and Another, 1978 (3) IPLR 148 wherein Hindustan Embroidery Mills Pvt. Ltd., filed an application for registration of certain trade marks and the respondents viz., Hemla Embroidery Mills Pvt. Ltd., applied for stay of the proceedings on the ground that certain arbitration proceedings between the parties were pending. They also applied for extension of time for filing evidence in support of the opposition. The Registrar refused these applications. Appeals against the orders of the Registrar to the High Court at Delhi were rejected. A notice was thereafter issued by the Registrar to the applicants (the appellants in the said case) calling upon them to file evidence in support of their application under Rule 54. The appellants challenged this order of the Registrar in the High Court on the ground that the order was incompetent as under Rule 53(2) the opposition must be deemed to be abandoned. It was held that under Rule 53(2) an opposition must be deemed to be abandoned for failure of the opponent to file evidence in support of the opposition within the period prescribed under Rule 53(1) unless the Registrar otherwise directs (ii) that Rule 53(2) is mandatory and operates automatically, and (iii) that after the opposition was deemed to be abandoned by the operation of Rule 53(2), the Registrar is not entitled to call upon the opponents to file evidence in support of the opposition". Relying upon the decision, the appellants have submitted that the Review Petition is out of time and therefore, the Registrar is not entitled to call upon the appellants to file the reply. Relying upon the decision, the appellants have submitted that the Review Petition is out of time and therefore, the Registrar is not entitled to call upon the appellants to file the reply. This is a case where, the opposite party was given an opportunity to state their objections in time and they have asked for the extension of time and the same was not granted and that therefore, it was held that Rule 53(2) the opposition must be deemed to be abandoned for having not filed the evidence in support of the decision within the prescribed period. In our case, such an opportunity was not given to the respondent to file their objection before splitting up and allotting the Trade Marks in their favour and in the said circumstances, the said ratio of the judgment is not applicable to the case on hand. 33. The learned Senior Advocate for the appellants also relied upon the decision of our Court in W.P.Nos.12668 to 12670 of 1998 dated 08.09.1998. It is a case where the Registrar of Trade Marks granted registration in favour of one party and the same was questioned. The learned Single Judge observed that "since that happens to be an order passed under the Act, there would lie an appeal under Section 109(2) of the Act against this and thereby these writ petitions would not be entertained as the petitioner would have adequate alternative remedy" . I respectfully agree with the said principles laid down by the learned Judge that an appeal shall lie under Section 109(2) of the Act against the Order passed by the Registrar. But, in our case, no order has been passed and hence, the said decision is of no help, to the appellants, but on the other hand, it would impoverish their case. 34. As it has already been demonstrated by the respondents that no order or decision has been taken on the review application filed by the respondents, the appeals are pre-mature and the same are not maintainable. In fact, the appellants are not able to point out the impugned order or decision said to have been passed by the Registrar of Trade, "Rothman's International". It is, therefore the combination of the two: the word 'CAMBRIDGE' from the one, and the crest device in the background of a dark blue and gold combination from the other mark. In fact, the appellants are not able to point out the impugned order or decision said to have been passed by the Registrar of Trade, "Rothman's International". It is, therefore the combination of the two: the word 'CAMBRIDGE' from the one, and the crest device in the background of a dark blue and gold combination from the other mark. Then, it cannot be said that the impugned mark is identical in toto to the mark of the plaintiff. Even from the comparison of two, i.e. the label appearing in Annexure 'A' to the petition and the label appearing i Marks, Chennai and in the absence of the same, I find it very difficult to accept the said contention of the appellants. Hence, I am of the view that the Registrar's letter calling upon the appellants to file reply would not at all amount to any order or decision and in the absence of the same, the Appeals have to fall to the ground. 35. Of course, the appellants have got every right to put forth all the contentions raised before this Court, before the Registrar of Trade Marks and they are at liberty to do so before the Registrar of Trade Marks and the same could be met by the respondents also. 36. As it is distilled that the letter sent by the Registrar of Trade Marks calling upon the appellants to file their statements would not at all amount to any order or decision, I have to necessarily hold that the appeals would not lie as against the said letter and in the said view of the matter. I come to the conclusion that the appeals filed by the appellants are not at all maintainable. 37. As it has been held that the Appeals are not sustainable and it has become unnecessary to give any finding on the second question i.e. the limitation raised by the appellants in filing the Review Petition. The parties are at liberty to agitate the same before the authorities concerned. 38. In the result, both the T.M. As. are dismissed. In view of the appeals having been dismissed, the order of stay granted in C.M.P. Nos. 6378 and 6379 of 1999 is vacated. Consequently, no separate order need be passed in C.M.P. Nos. 7906 and 7907 of 1999 and they are also dismissed. No costs.