Venkatarama Aiyar, J.:— This is an application for leave to appeal to the Supreme Court against the decision of this Court in App. No. 698 of 1948. That appeal arose out of a suit for partition instituted by the respondent in the Court of the Subordinate Judge of Narasapur. The present petitioner was the first defendant in the suit. His wife was the second defendant. The plaintiff alleged that he had been taken in adoption by the defendants on 7th April, 1932 and that as adopted son he was entitled to a half share in the family properties. On 6-7-1940 the first defendant had sold some of the suit properties to the Second defendant under Ex. D-7 and settled other properties on her on 25-10-1944 under Ex. D-10. The plaintiff contended that these deeds were not binding on him and that he was entitled to a half share in the properties comprised in those deeds. The defendants contested the suit on several grounds. They denied that they took the plaintiff in adoption. They contended that the deeds Exs. D-7 and D-10 were valid and binding on him. They also pleaded that the suit was barred by limitation. They raised several other pleas. On these pleadings, as many as 25 issues were framed.
2. Of these, issues 1 to 3 are alone now material. They are as follows:
“1. Whether the suit is barred by limitation because it is filed more than three years after plaintiff attained majority?
2. Whether defendants 1 and 2 adopted plaintiff on 7-4-1932 as alleged?
3. Whether the claim of plaintiff, if true, is defeated by exclusion for 12 years or adverse possession of first defendant?”
3. At the hearing of the suit, these issues were fried as preliminary issues. The Subordinate Judge held in favour of the plaintiff on issues 1 and 3 on the question of limitation. But he held on the second issue that the plaintiff had not proved the adoption set up by him. On that he dismissed the suit. The plaintiff preferred an appeal against that decision to this court, appeal No. 698 of 1948, and in our judgment dated 12-11-1952, we held, differing from the Subordinate Judge, that the plaintiff had established his adoption. Agreeing with the Subordinate Judge on the question of limitation, we remanded the case for trial of the other issues. The first defendant has filed the present application for leave to appeal to the Supreme Court against this order. The point for decision is whether the order of remand dated 12-11-1952 is a final order within the meaning of Art. 133 of the Constitution. It is contended by Mr. P.M Srinivasa Aiyangar, the learned advocate for the petitioner, that as we have decided on issue 2 that the plaintiff was adopted by defendants 1 and 2, our judgment would be a final order, because on that finding the plaintiff would be entitled to a half share in the family properties. But the truth of the adoption was not the only question in controversy between the parties. If that had been so, on our finding on issue 2, we should have passed a preliminary decree for partition, and that would have been open to appeal as a decree under Art. 133. There are other and substantial questions on which the parties are at Issue. For example, the plaintiff contends that the sale deed, Ex. D-7, dated 6-7-1940 and the settlement deed Ex. D-10 dated 27-10-1944 are not binding on him. The defendants, however, plead that they are valid and binding on him. I Issues 4, 5 and 6 relate to this contention. Unites these issues are determined, there cannot be a final adjudication of the points in dispute in the suit. No doubt the issue as to adoption is an important one, and by reason of our finding on that issue, one obstacle to the plaintiff obtaining a decree is removed. But before he can obtain a preliminary decree for partition, other issues also must be determined. Therefore, our judgment is interlocutory in character, not final.
4. There is considerable and high authority interpreting the precise meaning of the words “final order”. In — ‘Firm Ramchand Nanjimal v. Firm Goverdandas Vishandas Ratanchand’, AIR 1920 PC 86 (A), the question arose with reference to an order passed under the Indian Arbitration Act. The defendant in an action applied for stay under Section 19 of the Indian Arbitration Act and that was granted. The Judicial Commissioner of Sind set aside that order and remanded the case for disposal on the merits. Leave to appeal against his order was granted on the ground that it was a final order. Before the Privy Council, an objection was taken that the order under appeal was not a final order. In upholding this objection, Viscount Cave, after referring to the English authorities on the subject, observed as follows:
“The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the courts in the ordinary way. In their Lordships' view, the orders were not final, and accordingly the appeals cannot proceed.”
5. In — ‘Abdul Rahman v. D.K Cassim & Sons’, AIR 1933 PC 58 (B), the facts were these: The firm of Cassim and Sons had filed a suit for damages against the defendants on the ground that they had conspired to ruin their business. Pending the action, the plaintiffs were adjudicated insolvents. The Official Assignee declined to continue the action, and thereupon Cunliffe J. dismissed the action on the ground that the cause of action had vested in the Official Assignee and that the plaintiffs could not continue the suit. That order was set aside on appeal by Page C.J and Das J. on the ground that the cause of action was personal to the insolvents, and did not pass to the Assignee. The learned Judges however granted leave to appeal to the Privy Council against this order on the ground that it was a final order.
6. An objection having been raised that this was not a final order and therefore not appealable under Section 109 of the CPC, Sir George Loundes, after reviewing the authorities, held that the preliminary objection was well founded and that the order in question was not a final order. He observed:
“It remains to consider whether the order in question was a ‘final order’ within the meaning of S. 109(a) and this question is, their Lordships think, concluded by the judgment of this Board delivered by Lord Cave in) — ‘AIR 1920 PC 86 (A)…… Lord Cave, in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order ‘finally disposes of the rights of the parties’, and be held that the order then under appeal did not finally dispose of those rights, but left them ‘to be determined by the courts’ in the ordinary way’.
It should be noted that the appellate court in India was of opinion that the order it had made ‘went to the root of the suit, namely, the jurisdiction of the court to entertain it’, and it was for this reason that the order was thought to be final and the certificate granted. But this was 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) of the Code…… The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive and provided for its trial in the ordinary way.”
7. This question came up for consideration by the Federal Court in — Kuppuswami Rao v. The King’, AIR 1949 FC 1 (C). There, one Kuppuswami Rao had been charged with criminal misappropriation of funds and with signing false certificates of payments of cheques. While the trial was actually in progress, he raised objections to the maintainability of the prosecution on the ground that the consent of the Governor had not been obtained for the institution of criminal proceedings and that the requirements of Section 197 of the Cr PC had not been complied with. This court overruled the objections and dismissed the application with the result that the trial had to go on before the Magistrate. Against that order, the accused preferred an appeal to the Federal Court. Kania C.J after referring to the authorities, English and Indian on the point, held that to constitute a final order there must be such a determination of the points in dispute as would dispose of the proceedings.
8. The question was again considered by the Federal Court in — ‘Mohamed Amin Bros. Ltd. v. Dominion of India’, AIR 1950 FC 77 (D). The question for determination there was whether an order passed in the course of winding up proceedings was a final order as defined in Section 205(1) of the Government of India Act, 1935. Mukherjea J. delivering the judgment of the Court, held that it was not a final order, and after considering the authorities, observed;
“The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order.”
9. It is, therefore, well settled that an order can be held to be a final order only if it finally disposes of the rights of the parties in the suit or proceeding. It is this principle that was adopted by this Court in the decisions in — ‘Ramaswami Chettiar v. Official Receiver Ramanathapuram’, AIR 1951 Mad 1051 (E), and ‘Chandanmull & Co. v. Mohanlal M. Mehta’, AIR 1953 Mad 727 (F).
10. On the same principle, it has been held that when an action is dismissed by the court of first instance on the ground that it is barred by limitation or that it is ‘res judicata’ or that it is barred by Or. II rule 2 or that the suit is not maintainable and the dismissal is reversed on appeal and the case remanded for trial on the merits, the order is not a final one within the meaning of S. 109. Judged by these tests, the order sought to be appealed against will only be an interlocutory order and not a final order.
11. Mr. P.M Srinivasa Aiyangar sought to distinguish the above authorities on the ground that the preliminary findings in the above cases were on questions of law; but that where the determination was on a question of fact depending upon evidence the order must be held to be final. On principle, it is difficult to see now it will make a difference whether the preliminary finding is on an issue of fact or law, so long as that finding leaves the suit alive and undisposed of. The strongest case in support of the contention of the petitioner is the decision of the Privy Council in — ‘Saiyid Muzhar Hossain v. Mst Bodha Bibi’, 17 All 112 (G). There, the plaintiff filed a suit to recover certain properties on the-ground that he had purchased them from certain persons who were entitled to them under a will of one Ibn Ali. The defendants disputed the will and raised other contentions besides. The subordinate Judge held that the will was not valid and dismissed and action without trying the other issues.
12. On appeal by the plaintiff the High Court of Allahabad upheld the will and remanded the case for disposal on the other issues. The defendant applied for leave to appeal to the Privy Council but that was refused by the High Court on the ground that the order of remand was not a final order. The defendant moved the Privy Council for grant of leave and contended that the order in question was a final order and was-appealable under Section 595 of the CPC of 1882. This contention was upheld. Lord Hobhouse observed:
“In this case the Will of Ibn Ali is the cardinal point of the suit, and as after the decision of the High Court that can never be disputed again, their order is final, notwithstanding, that there may be subordinate inquiries to make.”
13. In AIR 1933 P.C 58 (B), this decision was relied on in support of the contention that the order which was there under appeal was a final order. But it was distinguished on the ground that the case was decided with reference to the Civil Procedure Code, 1882 in which the wording of the relevant section differed materially from that of the Code of 1908 and that, under the latter Code the order would not have been, appealable. This observation goes directly against the contention of the petitioner. This question was considered by this court in — ‘Sriramamurthi Naidu v. Satyanarayana Naidu’, AIR 1949 Mad 220 (H). There, the subordinate Judge dismissed a suit for partition on the ground that there had been a prior suit for partition. On appeal, this court came to the conclusion that there was no prior partition and remanded the case for trial on the other issues. An application was filed for leave to appeal to the Federal Court on the ground that the older of the High Court was a final order. Reliance was placed on the decision in — ‘17 All 112 (P.C) (G)’, as also on the decision in Mangayya v. Venkataramanamurthi’, AIR 1919 Mad 893 (I).
14. Horwill and Panchapagesa Sastri JJ. distinguished the case in — ‘17 All 112 (P.C) (G), as one under the old Civil Procedure Code, and held, following the observations in — ‘AIR 1935 P.C 54 (B), that the order was not appealable as a final order. As the reversal in this case was of a preliminary finding of fact depending on evidence it is a direct authority against the contention of the petitioner. Following these authorities, we must hold that the order of this court dated 12-11-1952 is not a final order open to appeal under Art. 133 of the Constitution.
15. Mr. P.M Srinivasa Aiyangar also raised the contention that even if the judgment dated 12-11-1952 was not a final order, it would be appealable as a judgment under Art. 133.
16. This argument is based on the view that the word “judgment” is used in Art. 133 of the Constitution in the sense which it bears under the definition in Section 2(9) of the CPC and that it means “the statement given by the judge of the ground of a decree or order”. But it has been held by the Federal Court in — ‘AIR 1950 FC 77 (D)’ that the word “judgment” in Art. 133 is used in the sense of a decree or order and not in the sense in which it is used in the Civil Procedure Code.
17. Mukherjea J. observed:
“Lastly it was urged by Mr. Setalvad, though somewhat faintly, that even if the order appealed against is not a final one, it could still be regarded as a judgment, and as such would come within the purview of Section 205(1) of the Government of India Act. In English Courts, the word ‘judgment’ is used in the same sense as a decree in the Civil Procedure Code and it means the declaration or final determination of the rights of the parties in the matter brought before the Court: Vide — ‘AIR 1949 FC 1 (C)’. According to the definition given in the Civil Procedure Code a judgment is the statement of reasons given by a Judge on which a decree or order is based. If the order which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutory judgment, and the collocation of the words “judgment, decree or final order” in Section 205(1) of the Government of India Act makes it clear that no appeal is provided for against an interlocutory judgment or order.”
18. We accordingly hold that our judgment dated 12-11-1952 is not a judgment for the purpose of Art. 133. In the result, this petition fails and is dismissed with costs.
A/D.H.Z
19. Petition dismissed.