Dawson Miller, C.J:— This is an application by the first two defendants in the suit for leave to appeal to His Majesty in Council from an order of a Division Bench of this Court passed on the 8th June last setting aside (a) a decree passed on the 26th November, 1924, by the Subordinate Judge of Monghyr in terms of a compromise alleged to have been made between the parties in the suit, and, (b) an order of the Subordinate Judge dated the 6th July, 1925, rejecting an application under section 151 of the Civil Procedure Code to set aside the said decree. The High Court further ordered that the case should be restored to the list to be taken up from the stage at which the compromise was filed.

The questions for determination are first, whether the order of the. Division Bench is a final order within the meaning of section 109(a) of the Civil Procedure Code and, secondly, if not, whether the case should be certified as a fit one for appeal to His Majesty in Council under section 109(c) of the Code.

The plaintiff is the widow of the late Babu Ugra Mohan Thakur, a rich zamindar of Bhagalpur, who died in 1914 leaving the great bulk of his estate to his nephew, the defendant No. 2 in the suit and a small sum of Rs. 100 per month to his widow for her maintenance. His will was duly proved and probate was granted to his executor, the defendant No. 1, in spite of the strenuous opposition of the widow, the present plaintiff, who contested the case as far as the High Court and was finally refused special leave to appeal to His-Majesty in Council. She also propounded an alleged will of later date and sought for letters of administration but that suit was finally disposed of by the Privy Council in 1921, her claim being rejected. The present suit in which this application arises was instituted in 1920 by the plaintiff claiming to revoke the probate on the ground that it was fraudulently obtained and for other reasons and in the alternative she claims maintenance at a more liberal rate than that given by the will. Apart from the executor and the residuary legatee, who are the first two defendants, the other defendants have some slight interest under the will or by purchase from the executor.

In November, 1924, during the pendency of the suit negotations with a view to compromise took place between the parties and on the 25th of that month the plaintiff and the first two defendants signed a petition of compromise which provided, inter alia, that the plaintiff should be paid out of the estate a sum of Rs. 1,000 per month, instead of Rs. 100 as provided in the will, including arrears from the date of the testator's death in 1914, such arrears to be paid as to Rs. 17,000 in cash and the balance by instalments and the suit was to be withdrawn. The plaintiff was in fact paid the Rs. 17,000 and a further sum of Rs. 3,000 as an advance towards her future maintenance. This transaction took place in the waiting room of the Railway station at Monghyr, the plaintiff being about to proceed by train to Darbhanga. It so happened that Mr. Chakravarti, the Subordinate Judge of Mongrhyr, before whom the suit was pending was also at the railway station upon business of his own and the parties with their pleaders handed over the petition to him there and then. He appears to have caused it to be read over to the plaintiff and noted thereon the following words:—

“Filed before me at 5-12 p.m and read over to the plaintiff who admitted the same.”

The hearing of certain issues in the case had been fixed, by an earlier order, to take place on the 27th November. On the 26th the pleaders of the parties appeared in Court and asked that the suit should be: formally disposed of in the terms of the compromise. The Subordinate Judge then recorded the following order—

“Petition of compromise filed on 25th November 1924 after Court hours put up today with the consent of the parties. Ordered………… suit be decreed in the terms of the compromise.”

The rest of the order deals with certain costs. About a week later, on the 4th December, a decree embodying the terms of the compromise was prepared and signed and sealed by the Court. The order made on the 26th was presumably passed under Order XXIII, rule 3 of the Civil Procedure Code, which provides the procedure to be adopted when the Court is satisfied that a compromise has been entered into.

On the 7th April, 1925, the plaintiff filed a petition in the Court of the Subordinate Judge seeking to have the compromise decree set aside on the ground that she had not consented to the terms thereof and material terms had been omitted of which she was not aware when she signed the document; that her pleaderhad no authority to file a compromise petition on her behalf and in her absence on the 26th November and that her signature had been obtained by fraud. The application was made under section 151 of the Civil Procedure Code which reserves to the Court power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The application was transferred to the file of another Subordinate Judge, Mr. Choudhari and determined by him on the 6th July, 1925. He dismissed the application, without going into the merits, holding that it was not maintainable under section 151 and that the proper remedy was by suit to set aside the decree.

From this order of the Subordinate Judge refusing, to set aside the decree the plaintiff applied in revision to the High Court asking that the Subordinate Judge, Mr. Choudhari, should be directed to exercise his jurisdiction under section 151 of the Code, which he had failed to do. A further application in revision was at the same time presented to the High Court asking, that the order of the Subordinate Judge Mr. Chakravarti, dated the 26th November, 1924, directing a decree to be drawn up in accordance with the terms of the compromise should be set aside on the ground that it was ultra vires and without jurisdiction inasmuch as it had not complied with the conditions prescribed, by Order XXIII, rule 3, which, before a decree can be passed on compromise, requires that the compromise should be recorded and this was not done. Had it been done an appeal would have lain from such an order but as no such order had been passed no appeal was possible. The plaintiff also complained that it did not appear from the order that the Court was satisfied that the suit had been adjusted by a lawful agreement or compromise within the terms of rule 3 of Order XXIII.

On the 8th June, 1926, these applications were heard together before Jwala Prasad and Bucknill, JJ. The Court held first, that the Subordinate Judge had jurisdiction to hear the application-under section 151 and ought to have entertained it and not dismissed it without going into the merits; and, secondly, that the order of the 26th November, 1924, directing a decree to be drawn up in the terms of the compromise could not stand and that, consequently, the decree itself must also be set aside. The principal grounds upon which the Court arrived at this conclusion were (1) that the terms of Order XXIII, rule 3, were not complied with as no order had been passed that the compromise should be recorded, (2) that the Court had no jurisdiction to take up the case on the 26th November, 1924, as there was no formal consent of the parties to do so before the date fixed for hearing on the 27th, (3) that there was no consent of any duly constituted pleader or agent to taking the case on the 26th November because the vakalatnama of the plaintiff's pleader gave him no authority to compromise or to file a petition of compromise and (4) that the presentation of the petition of compromise by the plaintiff's pleader in the absence of any authority so to act was a fraud upon the Court. The Court further directed the suit to be restored to the file of the Subordinate Judge of Monghyr to be continued from the stage at which the compromise was filed on the 26th November. The Court further directed that the care should be disposed of in accordance with law, by which I understand from the context the intention was that the Court should first be satisfied that a lawful compromise had in fact been entered into and, if it was satisfied, should order the compromise to be recorded before passing a decree in accordance therewith.

From this order the present application is made on behalf of the first two defendants for leave to appeal to His Majesty in Council. It is contended on behalf of the applicants that the order is final as it set aside a decree already passed in their favour. It is further pointed out that had the decision been the other way it would undoubtedly have been a final order determining the rights of the parties. In support of the agreement reliance is placed upon certain of the earlier English decisions in which it has been laid down that an order made upon an application which, if jdecided in one way, would determine the main dispute while, if decided the other way, would not, is a final order whichever way it is decided. The matter is one which has given rise to questions of some nicety and considerable difficulty and conflicting decisions are to be found in the cares upon the subject. It is not, in my opinion, necessary to refer to many of the English cases, which are numerious, on the point. I propose, however, to refer to a few cases in their chronological order in which different tests for ascertaining the finality of a judgment or order have been laid down.

In Shubrook v. Tufnell decided in 1882, an arbitrator under an order of reference stated a case for the opinion of the Court which provided that, if the opinion of the Court should be one way, the case was to be referred back to the arbitrator; if the other way, judgment was to be entered for the defendant with costs. The Court decided in favour of the plaintiffs and referred the case back to the arbitrator. The defendant appealed. It was objected that the case which had been treated as an appeal from an interlocutory order should have been entered as an appeal from a final order. The Court of appeal consisting of Jessel, M.R and Lindley, L.J, held that the order passed was a final order and that the appeal should take its place in the general list. The Court appears to have acted upon the view that where the decision of the Court on the point submitted to it could not in any event necessitate the entering of final judgment for either party the decision was interlocutory, but that if it could enter final judgment in the event of coming to a different decision then the order passed whichever way it went was final.

In the later case of Salaman v. Warner a different view was taken by the same Court consisting of Lord Sasher, M.S and Fry and Lopez, L.J.J In that case it was held that an order dismissing an action made upon the hearing of a point of law raised by the pleadings before the trial is not a final order within the meaning of Order 58, rule 3 of the Annual Practics. It was there laid down that a final order is one made on such an application or proceeding that for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. The case had been set down for argument before the trial upon a point of law, that the statement of claim did not disclose any cause of action. A Divisional Court dismissed the action after argument upon this point. Had the decision been the other way the suit would have proceeded in the ordinary course upon the merits. The Courtof appeal held that the order appealed from was interlocutory and not final. “If their decision” said Lord Esher, M.R, “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.” Fry, L.J, who cohcureed stated the rule thus: “I think the true definition is this, 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.”

Each of these cases appears to have laid down a test based not upon a consideration of the actual decision appealed from but upon a consideration of the decision which might, in one event, have been given and the tests formulated in the two cases are in direct conflict.

In the case of Bozson v. Altrincham Urban District Council an order was made in an action brought to recover damages for breach of contract that the questions of liability and breach of contract only were to be tried and that the rest of the case, if any, was to go to an Official Referee. At the trial the Judge held that there was no binding contract between the parties and made an order dismissing the action from which order the plaintiff appealed. The Court consisting of Lord Halsbury, L.C, Lord Elverstone, C.J and Sir Francis Jeune, P., held that the appeal was from a final order. The Lord Chancellor refused to follow the decision in Salaman v. Warner, preferring to follow the earlier decision. Lord Alver-stone, C.J, laid down what appears to me, with great respect, to be the real test in such cases. He says:—“It seems to me that the real test for determining this question ought to be this; Does the judgment or order, as made, finally dispose of the rights of the parties. If it does then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.” Judged by that test the order dismissing the action was held to be a final order.

The only other English case which I think it necessary to refer to is In re Croasdell and Camell Lalrd and Co., Ltd.. In that case an arbitrator made his award in the form of a special case but a Divisional Court subsequently made an order setting aside the award on the ground of misconduct on the part of the arbitrator. On appeal to the Court of Appeal it was held by Collins, M.R and five Lords Justices that the decision appealed from was an interlocutory order. The Court thought it unnecessary to enunciate any general rule on the question what orders are final and what interlocutory but arrived at their decision in the case before them on the ground that the order which did not determine any of the matters in dispute but left them where they were, merely asserting an informality in the award which had been made and setting it aside, was interlocutory. It will be observed that although the decision of the arbitrator was set aside, the order was held to be interlocutory, as the effect of it was not to determine the rights of the parties at issue in the litigation but to leave matters where they were before the arbitration took place.

In the present case, if the test applied by Lord Alverstone, C.J, in the case cited above, is the proper test to apply, then it cannot be said that the order which the petitioners now seek to appeal from is a final order. The effect of the order is merely this, that owing to defects of procedure in the Subordinate Court no proper decree has been passed and that the rights of the parties still have to be determined according to law. There is nothing in the order which, in my opinion, can even remotely be said to determine any of they rights in dispute between the parties and were it necessary to arrive at a conclusion in the light of the English cases only, I should hold that the order now sought to be appealed from is interlocutory and not final. It seems to me that the real test must be based upon a consideration of the actual order made.

The Indian cases, however, in which there appears to be a singular unanimity on the particular point raised, also go to show that where a decree is set aside on the ground of irregularity or want of jurisdiction the order is not final but interlocutory. In Calcutta, Madras, Bombay and Allahabad the same view appear to have been taken, as a short reference to the cases recently decided in those Courts will show. In Sourendra Nath Mitter v. Srimati Tarubala Dassi the trial Court had recorded a compromise and passed a preliminary decree in accordance therewith as in the present case. On appeal a Division Bench of the High Court held that the compromise had not been made out, set aside the order recording the compromise and the decree based thereon and remanded the case to the lower Court for trial. Against this decision an application was made for leave to appeal to His Majesty in Council. The Court held that the order of the Division Bench remanding the case to the lower Court for trial must be regarded as an interlocutory order and that it was not a decree or final order passed on appeal within section 109(a) of the Code. One distinction between that case and the present is that there the order and decree were set aside on appeal, whereas in the present case the decree was set aside under the Court's revisional jurisdiction. The distinction, if any, is in favour of the respondent for section 109(a) of the Civil Procedure Code speaks only of a decree or final order passed on appeal. I will assume, however, for the purposes of this case, without deciding the point, that no distinction is to be drawn between an order passed on appeal and one passed in revision. A further distinction lies in this, that in the order there sought to be appealed from it was in fact found that no compromise had been entered into, whereas in the present case it is still left for the trial Court to determine that question. Rankin, J., after pointing out in his judgment that an adjustment under Order XXIII, rule 3, was in some ways a very special matter whereby a, party was allowed to stand upon and enforce an agreement which was not in existence at the date of the suit and that it was a method whereby a party was allowed to enforce what is really a new cause of action in order to avoid abandoning one suit and starting another, says “In my judgment the mere dismissal of an application for recording an adjustment coupled with an order that it as therefore necessary for the case to be tried in the ordinary way does not stand in such a relation to the proceeding before the Court as to entitle it to be regarded as something which conclusively adjudicates upon the rights of the parties which were really the subject matter of the litigation. It merely negatives one of the several ways in which it may be contended that the rights of the parties should be disposed of.” Still less can it be said that there is any finality in an order which determines neither the rights of the parties in the suit nor the question whether a valid compromise has been come to but leaves all these questions to be determined hereafter.

In Brito v. Brito a decision of the Madras High Court, it was held that an order passed in revision refusing to interfere with an order of the Subordinate Judge passed under section 151 of the Code restoring to the file a suit which had been disposed of upon an alleged compromise between the parties was not a final order within the meaning of section 109 and that leave could not therefore be granted to appeal to His Majesty in Council against such an order.

Again the Bombay High Court in Shri Satchidanand Vidya v. Shri Vidya Narsinha decided that an order of the High Court setting aside a decree of the trial Court based upon an alleged compromise between the parties and directing the trial Court to proceed with the suit in the ordinary course was not a final order appealable under the Code to His Majesty in Council.

Lastly it was decided by the Allahabad High Court in the case of Bhagwati Dayal v. Musammat Dhan Kunwar that the words “final order” in section 109 of the Code mean an order which puts an end to the litigation between the parties or, at all events, disposes so substantially of the matters in issue between them as to leave only subordinate or ancillary matters for decision and that an order by which a Court set aside a compromise of a suit is an interlocutory order and not a final order.

All these cases are of recent date having been decided between the years 1922 and the present year. No decision of any of the High Courts in India has been drawn to our attention in which an order such as that passed in the present case has been held to be a final order.

The case of Lachmi Narain Marwari v. Balmakund Marwari to which I was a party was referred to by the learned Counsel for the applicants in support of his argument. In that case a preliminary decree obtained in a partition suit had been set aside by the trial Court for want of prosecution in the subsequent proceedings. The preliminary decree had finally decided, in favour of the plaintiff's right to partition. In carrying out the terms of the decree the plaintiff defaulted in appearance. The trial Court thereupon, exercising a jurisdiction which it did not possess, set aside the preliminary decree and dismissed the suit. The High Court decided that order could not stand as the trial Court had no power to set aside the decree previously obtained merely on the ground of non-appearance in the subsequent proceedings. The decree was subsequently restored but no further question remained to be decided with regard to the plaintiff's right to that decree. It was there held that the order of the High Court was a final order and the case went on appeal to His Majesty in Council. The difference between that case and the present is this. The order in that case finally determined that the plaintiff was entitled to partition. The order in the present case decides nothing as to the rights of the parties in the suit and merely directs the Judge to re-hear the application for recording the compromise and to proceed thereafter according to law.

The case of Rai Baij Nath Goenka Bahadur v. Sir Hameshwar Singh was also referred to, but I can find nothing in the judgment in that case which conflicts with the view I have already expressed. In my opinion the order which it is sought to appeal from is not a final order.

It was further argued on behalf of the applicants thlt the order should in any event be certified as a fit one for appeal to His Majesty in Council under clause (c) of section 109. The argument under this head consists mainly in pointing out that the plaintiff, as appears from the various unsuccessful attempts she has made to contest the validity of her husband's will, is a lady of pronounced litigious tendencies and that if this case were allowed to go before a higher tribunal that tribunal would have no difficulty in overruling the decision and putting an end once and for all to this unfortunate litigation. I am not prepared to enter into a discussion of the merits of the decision from which it is sought to appeal. It must be assumed that the decision is right until it is overruled or varied by a higher tribunal; nor am I satisfied that the course suggested would bring about a more speedy termination of the litigation than if the case proceeds as directed by the order. The powers granted under section 109(c) should, in my opinion, be sparingly used and, although I do not consider it desirable to lay down the principles which should guide the Court in acting on it, I consider that the present case is not one in which the powers granted under clause (c) of the section can properly be invoked. This application should, in my opinion, be dismissed with costs.

Ordinarily the hearing fee would be assessed at five gold mohurs but on the 5th July last, before the vacation, an application was made asking, amongst other things, to expedite the hearing of the present application without serving some of the respondents in the suit. That application was refused but the costs were reserved to be taken into account when the application for leave to appeal should come before us.

Foster, J.:— I agree.

Application dismissed.