Agarwala, J. (August 25, 1955):— This is a petition for leave to appeal to the Supreme Court under Art. 133(1) of the Constitution. The facts in brief are as follows.

2. On the 12th April, 1948 the petitioner filed a first appeal in this Court against a judgment and decree of the lower court dismissing the petitioner's claim for Rs. 75,000 as compensation on a referrence under Sec. 18 of the Land Acquisition Act. The appeal was dismissed on the 6th April, 1954 for default as the counsel appearing for the petitioner did not appear in Court in support of the appeal. This was after the paper-book in the case had been printed. Two days later, the petitioner filed an application for setting aside the ex parte order of dismissal of the appeal on the ground that he did not know of the date of hearing as his counsel had not sent him any information to that effect. The Court dismissed the application on the ground that since the counsel had been informed of the date of hearing it would be deemed that the petitioner had information about it and it was immaterial that the counsel had not actually informed the petitioner of the date. Against this order the petitioner desires to go in appeal to the Supreme Court. Learned counsel for the petition has urged that either the petitioner is entitled to appeal to the Supreme Court as of right under clause (b) of Art. 133(1) which requires that in the proposed appeal there should be a claim either directly or indirectly respecting property worth not less than Rs. 20,000/-, or, in any case, he has right of appeal under Art. 133(1)(a) inasmuch as the value of the subject-matter of the suit in the trial court was not less than Rs. 20,000/- and of the subject-matter in the proposed appeal is also of the same amount and further that substantial questions of law arise in the case. The substantial questions which the learned counsel points out are the points of law that arose in the appeal to this Court and also in the order of this Court dismissing the application for setting aside the order of dismissal for default. Lastly learned counsel has contended that in any event the case is such that it should be certified as fit for appeal to the Supreme Court under clause (c) of Art. 133(1). The questions raised in the case call for the construction of the phrase “final order” as used in Art. 133. The appeal sought to be preferred to the Supreme Court is against the order dismissing an application for setting aside an order of dismissal for default. Is this order a final order within the meaning of Art. 133? It is conceded that the order cannot be said to be interlocutory. But then the question is whether the expression “final Order” means any order which is not interlocutory or means something more than that. In Kishan Chand v. Lachhmi Chand A.I.R 1933 All. 15. a Bench of this Court held that a final order within the meaning of Sec. 109 need not be an order passed in the suit itself but may be a final order in any other proceeding or case arising subsequent to the suit; if that order finally terminates that proceeding and determines the rights of the parties so far as the question in controversy between the parties in that proceeding is concerned. In that case the lower court had rejected an application to set aside an ex parte decree and in appeal the High Court allowed the appeal and set aside the ex parte decree and remanded the case for trial to the lower court on the merits. This order was held to be a “final order” and leave to appeal to the Privy Council was granted. If this position is correct, it appears to us on principle that the contention of the learned counsel should be accepted. But there are two other decisions of this Court which are directly in point. One of them is Mt. Bismillah Begam v. Hira Lal A.I.R 1917 All. 313. in which on facts similar to the facts of the present case it was held that an order dismissing an application for setting aside an order dismissing an appeal for default was not a final order. The same view was taken in the other case Pt. Krishna Kant Malavia v. Lala Amarnath A.I.R 1937 All. 566.. There is also a Rangoon case which has taken the same view, Mating Saw Myaing v. Mg. Sein A.I.R 1924 Rang. 208. and also an Oudh case Kunwar Jagdish Kumar Singh v. L. Harikishen Das A.I.R 1942 Oudh 362.. This Oudh case was however dissented from A.I.R 1948 All. 375, where a Bench of this Court held that an order dismissing an appeal in default of prosecution was a final order as it affirmed the decision of the lower court. There are several Privy Council decisions, a Federal Court decision and a Supreme Court decision which have some bearing on the point, but we do not think that they are direct authorities on the point which falls to be decided by us. In Radha Kishan v. The Collector of Jaunpur I.L.R XXIII, All. 220. an ex parte decree was passed by the Court below and an application for setting aside the ex parte decree was dismissed by that Court. In the appeal to the High Court, the Court set aside the order dismissing the application for setting aside the ex-parte decree and remanded the application for being determined de novo. The Privy Council held that the order of the High Court was not a final order inasmuch as the rights of the parties were yet to be determined as even the application for setting aside the ex parte order had not till then been decided. In Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand A.I.R 1920 P.C 86. a suit for damages was brought in spite of a previous arbitration agreement between the parties. The defendant applied under Sec. 19 of the Arbitration Act for the stay of proceedings and reference of the case to arbitration. The trial court granted the stay, but the Judicial Commissioner reversed that order and refused to stay the proceedings. It was held by the Privy Council that the order of the Judicial Commissioner was not a final order as he did not finally dispose of the rights of the parties but left them to be determined by the court in the ordinary way. These two decisions of the Privy Council were referred to in the Bench decision of this Court in Kishan Chand's case and distinguished. Then there is a third Privy Council decision, V.M Abdul Rahman v. D.K Cassim & Sons A.I.R 1933 P.C 58. where their Lordships observed:

“The test of finality is whether tbs order ‘finally disposes of the rights of the parties’ where the order does not finally dispose of those rights but leaves them ‘to be determined by the Courts in the ordinary way’, the order is not final. That the order ‘went to the root of the suit, namely the jurisdiction of the Court to entertain it’, is not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under S. 109(a)”.

3. It may be observed that in that case the suit had been dismissed by the trial Court on account of the official Assignee's failure to furnish security. The appellate Court held that the Claim did not vest in the Official Assignee and remanded the case for trial on the merits.

4. This order was held not to be a final order.

5. The Federal Court in S. Kuppuswami Rao v. The Governor General of India A.I.R 1949 F.C 1. observed:

“To constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case but the decision must not keep the matter alive and provide for its trial in the ordinary way.”

6. In Mohammad Amin Brothers Ltd. v. The Dominion of India A.I.R 1950 F.C 77. the appeal was from an interlocutory order and the Federal Court held that this was not a final order.

7. In Prem Chand Satramdas v. The State of Bihar A.I.R 1951 S.C 14. it was held that an order of the High Court declining to call upon the Board of Revenue to state a case under Sec. 21, Bihar Sales Tax Act, 1944, is not a final order passed in exercise of either original or appellate jurisdiction and is therefore not appealable. During the course of the judgment, it was observed that the order appealed against could not be regarded as a final order because it did not of its own force bind or affect the rights of the parties.

8. All these cases of the Privy Council, the Federal Court and the Supreme Court may be said to be distinguishable because of the particular facts of those cases. The principle, however, appears to be that in order than an order be a final order the following conditions must at least be satisfied:

(1) that it should not be an interlocutory order,

(2) that even though it is an order which disposes of the proceedings before a court finally, it should not be an order which leaves the original proceeding in the court below alive and

(3) that there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties.

9. In the present case the order in question is not a preliminary order but finally disposes of the proceeding before the High Court which was initiated by the presentation of the petition for setting aside the order dismissing the appeal for default. It does not keep the original suit or appeal alive. It certainly did decide the rights of the parties so far as that petition was concerned.

10. In view of what was held in A.I.R 1948 All. 375, it does not seem to be necessary that the order in question must be on the merits, and all that seems to be necessary is that the order results in affecting the rights of the parties. It seems to us that the order in question in the present case finally denied to the applicant the right of his appeal being reheard and thus affirms the decision of the dismissal of the appeal which in its terms affirms the decision of the lower court. This is a very serious matter for the applicant. If the order in question can be considered a final order we would have thought a substantial question of law arose in the case and we would have granted leave to appeal to the Supreme Court. In our view the cases of Bismilla Begum and Pt. Krishna Kant Malavia require reconsideration.

11. Accordingly we direct that the papers of this case be laid before the Hon'ble the Chief Justice for the case being heard by a larger Bench, if he thinks fit.

JUDGMENT OF THE FULL BENCH

12. Kidwai, J.:— In proceedings under the Land Acquisition Act about 873 acres of land belonging to the petitioner were acquired by the State and a sum of Rs. 1739/10/- was assessed as compensation. The petitioner made a claim for Rs. 75,000/- as compensation and eventually had the matter referred to the District Judge under Sec. 18 of the Land Acquisition Act. The District Judge held that the proper compensation was Rs. 5365/8/- but that, in view of the provisions of Sec. 25(2) of the Act he could award only Rs. 1739/10/- and he made an award to that effect.

13. The petitioner appealed but he confined his appeal to a sum of Rs. 46,000/-. In this Court on the date fixed for hearing, one of the learned Counsel for the petitioner did not appear and the two who did appear stated that they had no instructions to press the appeal. The appeal was accordingly dismissed for want of prosecution on the 6th April, 1954 by a Division Bench.

14. On the 8th April, 1954 an application was presented under Order XLI, Rule 17 and Sec. 151, C.P.C through another counsel for restoration of the appeal to its original number. It was stated in this application that the applicant had no knowledge of the date of the hearing and that his counsel had given him no information with regard to it. This application was supported by an affidavit but it was dismissed by the same bench on the 19th July, 1954, on the ground that no sufficient cause had been made out for a reconsideration of the matter.

15. The petitioner then applied on the 18th October, 1954, under Art. 133 of the Constitution for leave to appeal to the Supreme Court from the order refusing to restore the appeal. The application gave all the material facts and also stated that the value of the subject matter of the proposed appeal was over Rs. 20,000/-. It did not, however, set out the grounds of the proposed appeal.

16. The petition came up for hearing before a Division Bench of which one of us was a member. It was considered that the question raised called for the construction of the words “final order” used in Art. 133 of the Constitution. The learned Judges referred to a large number of decisions. They held that most of the cases were distinguishable on the facts but that the principles to be deduced from them were that to make an order a final order three conditions must be satisfied, namely:

“(1) That it should not be an interlocutory order;

“(2) That even though it is an order which disposes of the proceedings before a Court finally, it should not be an order which leaves the original proceedings in the court below alive and

“(3) That there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties”.

17. They then held:—

“It seems to us that the order in question in the present case finally denies to the applicant the right of his appeal being reheard and thus affirms the dismissal of the appeal which in its terms affirms the decision of the lower court. This is a very serious matter for the applicant. If the order in question can be considered a final order, we would have thought a substantial question of law arose in the case and we would have granted leave to appeal to the Supreme Court. In our view the cases of Bismillah Begam and Pt. Krishna Kant Maloviya require consideration.”

18. The case was accordingly referred to a larger Bench and the present Full Bench has been constituted for the purpose of deciding the question.

19. By the enforcement of the Constitution the law relating to appeals from decisions of High Court has undergone a considerable modification. Under Sec. 109, C.P.C appeals lay only.

“(a) from any decree or final order passed on appeal by a High Court……….

“(b) from any decree or final order parsed by a High Court in the exercise of original jurisdiction; and

(c) from any decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal…………”.

20. Even after enforcement of the New Constitution the provisions of Sec. 109 of the C.P.C remain practically unaltered except that they are made, as they were bound to be, subject to the provisions of Chapter IV of Part V of the Constitution and that they would apply now only to the limited class of cases to which Art. 135 of the Constitution makes them applicable.

21. After the enactment of the Government of India Act, 1935, a limited jurisdiction, was also conferred upon the Federal Court by Sec. 205 of the Act but we are not concerned with this.

22. The law as to appeals to the Supreme Court, for the purposes of this case, since that was the only provision on which reliance was placed in the petition for leave to appeal and in the arguments before the division bench and before us, is contained in Art. 133(1) of the Constitution which reads as follows:—

“133(1). An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies:—

“(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law: or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court;

and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.”

23. It will be seen that, while clause (a) is still confined, by necessary implication, to appeals from judgments, decrees and final orders passed on appeal clause (b) is no longer limited to judgments, decrees and orders passed in the exercise of original jurisdiction but is wide enough to cover all judgments, decrees or final orders provided that there is some claim or question involving, directly or indirectly, property of the value of Rs. 20,000/-, Further, even in cases covered by clause (c) the proposed appeal must be from a “judgment, decree or final order” and not merely from any decree or order.

24. We may note that in the instant case there is no question of an appeal from any judgment or decree and that it was not disputed before us that three conditions postulated by the Division Bench must exist before an order could be called a final order. The learned counsel for the applicant contended that all the three conditions were satisfied while the learned Senior Standing Counsel urged:

(a) that the order was an interlocutory one;

(b) that the order did not of its own force determine the rights of parties; and

(c) that the order did not either directly or indirectly raise any claim or question to property of the value of Rs. 20,000/-.

25. In some early cases—vide Rahimbhoy Habibhoy v. Turner L.R 18 I.A 6. and Syed Mizbar Husain v. Bodha Bibi L.R 22 I.A 1.—it was held that even orders which resulted in a remand of an appeal were final orders provided that some cardinal point affecting the rights of the parties was decided by the judgment of the High Court. In later cases, however, it has been held that an order which keeps the case “alive” in the lower court and the result of which is to allow the case to continue is not a “final Order”—Vide Firm Ramchand Manjimal v. Firm Goverdhandas Vishundas Ratanchand, V.M Abdul Rahman v. D.K Cassim & Sons, Mohammad Amin Brothers Ltd. v. The Dominion of India and S. Kuppuswami Rao v. The King (which was a criminal case but in which all the decisions relating to Civil appeals were discussed). The order in the instant case does terminate the whole proceeding and does not keep either the original or any subsequent proceeding alive.

26. Mr. Dhaon, however, contended that the application of the 8th April, 1954 might have been disposed of in one of two ways: it could either be dismissed (as has been done) or it could have been allowed. If it had been allowed the appeal which had been dismissed for want of prosecution would have been revived and the matter would have been “alive”. He, therefore, urged that according to the decision of Lord Esher, Master of Rolls, and the other Judges in Salaman v. Warner 1891 1 Q.B 734. the order was merely an interlocutory order. In that case Lord Esher no doubt said:—

“If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand if their decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other will allow the action to go on, then I think it is not final, but interlocutory”.

27. In the same case Fry, L.J said:—

“I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined”.

The remarks of Lord Justice Lopes are to the same effect. The correctness of this decision was not accepted by Lord Halsbury Lord Chancellor, in Bozson v. Altrincham Urban District Council 1903 1 K.B 547. who preferred to follow some earlier decisions. In that case Lord Alverstone, C.J held that the real test for determining the question was: “Does the judgment or order, as made, finally dispose of the rights of the parties”.

28. Both the decisions were relied upon in Firm Ramchand Manjimal v. Firm Goverdhandas Vishundas Ratanchand and S. Kuppuswami Rao v. The King. In both these cases, however, it was immaterial which of the two views was accepted because in either view the decision which was being considered was not final. In the instant case a conflict arises: if the earlier decision is accepted as correct then the order which we are considering is merely interlocutory while if the later decision is accepted the order in the present case is not interlocutory. We see no reason to differ from the view expressed by Lords Halsbury and Alverstone in the later case and we hold that the order in the present case is not an interlocutory order.

29. The next and most important question that arises for consideration is whether it is necessary that an order to be a final order must, of its own force, determine the rights of the parties.

30. The two Privy Council decisions in Firm Ram Chand Manjimal v. Firm Goverdhandas Vishundas Ratanchand and V.M Abdul Rahman v. D.K Cassim & Sons are not of much assistance because though some remarks made in them might appear to be pertinent to the question before us, those remarks must be read in the light of the context. The question involved in both these cases was whether an order which left the suit to be decided and did not terminate it could be treated as “final order”. Their Lordships held that it could not. The basis of the decision in each case was that the suit was still “alive” and that the rights of the parties had yet to be determined by the courts in the ordinary manner. The principle laid down has no application to the present case.

31. The Federal Court decision in Mohammad Amin Brothers Ltd. v. The Dominion of India also stands on the same footing.

32. The decision in Mt. Bismillah Begam v. Hira Lal is also not of any assistance in determining the question. In that case leave to appeal to the Privy Council could not be granted because an order dismissing an application for restoration of an appeal was held to be an order passed neither “on appeal” within the meaning of Sec. 109(a), C.P.C nor an order passed in the exercise of original jurisdiction within the meaning of Sec. 109(b), C.P.C This case was followed in Maung Saw Myaing v. Mg. Sein. In view of the change in the law effected by the Constitution this ratio is no longer applicable.

33. In Pt. Krishna Kant Malavia v. Lala Amarnath the learned Judges proceeded on the same basis but they added:—

“The Court was not bound to restore the case and had discretion in the matter which of course had to be exercised judicially. No cardinal point between the parties was decided by the order dated the 4th January, 1937. Nor have the rights of the parties in the case itself been adjudicated upon in that order. We are, therefore, unable to hold that the order in question was a final order within the meaning of Sec. 109(a)”.

34. On the same lines is the decision in Prem Chand Satramdas v. The State of Bihar which is of considerable assistance. In that case the High Court declined to call upon the Board of Revenue to State a case under Sec. 21 of the Bihar Sales Tax Act. It is clear that the proceedings before the High Court came to an end with this order and further that the assessee had no remedy left against the order of the Board which became final. Nevertheless the Supreme Court held that the order of the High Court was not a final order. Fazl Ali, J. said at page 15:

“In order to attract the provisions of this clause “(a clause in the letters Patent of the Patna High Court) it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exercise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under Sec. 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its Judgment to the Board of Revenue. The Board then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties and the final order in the matter is the order which is passed ultimately by the Board of Revenue.”

35. Applying the ratio of this case to the instant case, it is clear that the order refusing to revive the appeal did not, standing by itself, affect the rights of the parties. Those rights had been, disposed of by the dismissal of the appeal for want of prosecution: the order complained of only refused to allow the matter to be reagitated. It is an order relating to procedure and not to the merits of the appeal, vide M.A Janki v. M.A Srirangammal A.I.R 1953 Mad. 38.. We have accordingly come to the conclusion that the order against which the petitioner seeks to file an appeal to the Supreme Court is not a final order within this meaning of Art. 133 of the Constitution. This application is dismissed with costs.

36. Application dismissed.