Sindhuram Chaudhury Applt. v. Krishna Dutta Resp.

Thadani, C.J:— This is a petn. by the judgment-debtor under Article 133 of the Constitution for leave to appeal to the S.C of India from an order passed by this Ct. on 13-12-1949. The operative part of the order is in the terms:

“This appeal is, therefore, allowed. The orders of the Ct. below are reversed & the case is remanded to the learned Munsiff for disposal of the appln. for delivery of possession according to law.”

2. The only question argued before us was as to whether the appln. by the decree-holder for execution of his decree for possession was time-barred. We came to the conclusion that the decree-holder's appln. to execute the decree for possession was not time-barrel & remanded the case to the Ct. that passed the decree for disposal of the decree holder's appln. for delivery of possession in accordance with law. The provisions of Article 133 of the Constitution of India are in these terms:

“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 is 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 to any case other than a case referred Page: 74to is sub-clause (c), if the High Court farther certifies that the appeal involves some substantial question of law.”

3. The question for one decision is as to whether the order passed by this Ct. on 13-12-49 is a final order within the meaning of Article 133 of the Const. Ind. We think that it is not. Harries, C.J had occasion to consider the meaning of the expression “final order” in Rajkumar Chandra v. Midnapore Zemindary Co. Ltd., 54 C.W.N 874. After referring to the case of Abdul Rahman v. D.K Cassim & Sons, 60 I.A 76 : (A.I.R (20) 1933 P.C 58), Harries, C.J, observed that the observations of Sir George Lowndes in the above case were followed by the P.C in Mohammad Amin Brothers Ltd. v. The Dominion of India, 1949-50 F.C.R 642 : (A.I.R (37) 1950 F.C 77) wherein it was observed:

“The expression ‘final order’ in Section 205 of the Government of India Act, has been used in contradistinction to what is known as ‘interlocutory order’ & the essential test to distinguish the one from the other hae been discussed & formatted in several cases decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Ct. in their resent pronoun cement in S. Kuppuswami Rao v. The King, 1947 F.C.R 180 : (A.I.R (36) 1949 F.C 1 : 49 Cr. L.J 625), & the law on the point, so far as the Ct. is concerned, seems to be well settled. In fall agreement with the decision of the Judicial Committee in Firm Ram Chandra Manjimal v. Firm Goverdhandas Vishindas, 47 I.A 124 : (A.I.R (7) 1920 P.C 86) and Abdul Rahman v. D.K Cassim and Sons, 60 I.A 76 : (A.I.R (20) 1933 P.C 58), & the authorities of the English Cts. upon which these pronouncements were based, it has been held by this Ct. that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. To quote the language of Sir George Lowndes in Abdul Rahman v. D.K Cassim and Sons, 60 I.A 76 : (A.I.R (20) 1933 P.C 58). 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. The fact that the order decides an important & 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 & has got to be tried in the ordinary way, do finality could attach to the order.”

4. We think these observations apply with equal force to an order of remand, remanding an appln. for possession made in execution of a decree to be disposed of according to law. By our order, dated 18-12-1949, the execution proceedings were kept alive in that the question of the delivery of possession in accordance with law has still to be decided by the executing Ct. The fact that we have decided an important question of limitation is, as observed by their Lordships of the S.C not, by itself, material.

5. In Barkat Ram v. Bhagwan Singh, A.I.R (36) 1949 E.P 222, Ram Lall, C.J, and Bhandari J. had occasion to interpret the meaning of the words ‘final order’ in Section 109 of the CPC. In the case before them, the orders passed disposed of certain objections raised in execution proceedings, & the learned Judges pointed out that the orders passed by them did not decide the appln. & observed:

“It has been pointed out repeatedly that the test to find out whether an order is final one is not whether the point decided thereby is a cardinal one, but whether the rights of the parties in the suit are finally disposed of by it.”

6. A Full Bench of the Lahore H.C in Barkat Ram v. Rhagwan Singh, A.I.R (30) 1943 Lah. 140 : (208 I.C 89 F.B) had also occasion to consider the meaning of the words ‘final order’ in Section 103 of the CPC. The learned Judges, after citing certain decisions which appear at p. 145 of the report Barkat Ram v. Bhagwan Singh, A.I.R (30) 1943 Lah. 140 : (208 I.C 89 F.B), observed:

“These remarks were no doubt made in a case in which the remand order had been passed an appeal from a decree dismissing a suit on a preliminary point, but the same test would apply to execution proceedings &, as the execution appln. is still pending & is a ‘live’ appln. the order cannot be said to be a final order.”

7. Mr. Bora for the petnr. has referred us to a decision reported in Rahimbhoy Habibhoy v. C.A Turner, 18 I.A 6 : (15 Bom. 155 P.C). This decision was considered by Harries, C.J, & he pointed out that while it is true that Sir George Lowndes had said that the case of Rahimbhoy Habibhoy, (18 I.A 6 : 15 Bom. 155 P.C), had been decided in the same way under the present code, he nevertheless observed that the order must be final, & further that the finality must be a finality in relation to the suit.

8. In our view, the order against which leave to appeal is sought in the present case is not a final order & the question, therefore, of leave to appeal to the S.C of India does not arise. In this view, it is unnecessary to express our opinion one way or the other on the point raised by Mr. Bora that assuming the order passed by us is a final order, his client is, as a matter of right, entitled to obtain leave to appeal as our order was passed before the Const. Ind. came into force & the value of the property had been determined to be Rs. 10,000 or more. On an appropriate occasion we will decide the question as to the right of a party to ask for leave to appeal when the order appealed from was passed before the cost, Ind came into force & relates to property valued at Rs. 10,000 or more & the order appealed from is a final order. The result is that the petn. is dismissed with costs. Hearing fee is fixed at Rs. 50.

Ram Labhaya, J.:— I agree.

9. Petition dismissed.