Sourendra Nath Mitter v. Tarubala Dassi

Sanderson, C.J:— This is an application by the Plaintiffs in the suit for a certificate that the case is a fit one for appeal to His Majesty in Council.

The suit was brought by the Plaintiffs for partition by metes and bounds of the properties described in the plaint. During the course of the trial it was alleged that a compromise between the parties had been arrived at and an application was made on behalf of the Plaintiffs to the learned Subordinate Judge for recording the compromise and for a decree in accordance with the terms of the compromise. The Defendant Srimati Tarubala Dassi objected to the compromise being recorded and to a decree being passed on the ground that the compromise had not been made with her authority. The learned Subordinate Judge heard evidence—both oral and documentary—and came to the conclusion that the compromise had been arrived at and was binding upon the parties. The learned Judge ordered the compromise to be recorded and made a preliminary decree in accordance therewith so far as it related to the suit.

The Defendant then preferred an appeal to the High Court against the order recording the compromise and against the decree and the appeal was heard by my learned brother Mr. Justice Walmsley and Mr. Justice Bepin Behary Ghose. These two learned Judges allowed the appeal and remanded the case to the trial Court in order that it might be heard from the stage at which it had reached on the 3rd September 1923.

It was argued on behalf of the Plaintiffs that the decision of the Division Bench of this Court was a “decree” or a “final order” passed on appeal within the meaning of sec. 109, cl. (a) of the Code of Civil Procedure and that inasmuch as it reversed the decision of the Court immediately below and as there was no doubt that the value of the subject-matter in dispute in the suit and in the appeal was more than Rs. 10,000 the Plaintiffs were entitled to a certificate. On the other hand, it was argued on behalf of the Defendant that the order of the Division Bench was no more than an interlocutory order and did not decide the questions which were in dispute in the suit between the parties. There is no doubt that the decision of the Division Bench of this Court may be said to be a “final order” in the sense that it decided that the alleged compromise should not be recorded and that no decree should be made in accordance with the terms of the compromise. On the other hand, it is clear that the decision of the Division Bench of this Court did not decide any of the matters in controversy between the parties in the suit.

I have come to the conclusion that the order of the Division Bench of this Court remanding the case to the trial Court must be regarded as an interlocutory order.

I refer to the case of Alexander John Forbes v. Ammeeroonissa Begum. In that case a suit was brought by the Plaintiff, who was a mortgagee, for possession, of a taluk and other real estates, which had been mortgaged to him by deeds of absolute sale and defeasance, constituting a Bye-bil-wuffa, or conditional sale in the nature of a mortgage. The case was tried by the Civil Judge of Purneah who made a decree for possession with the mesne profits which were claimed. The Defendant appealed to the Saddar Dewani Adalat and that Court by its order, which was dated the 22nd January 1857, held that the Civil Judge had been wrong in decreeing wasilat or mesne profits, and, further, that as the Plaintiff had been found to have been in possession, he was bound, before he was entitled to have his conditional sale made absolute, to render accounts, and to show that the loan had not been liquidated with interest from the usufruct of the property, and the Court remanded the case in order that the Judge might call upon the Plaintiff for his accounts, and then, with reference to the above remarks, decide the case according to the results shown by them.

The case accordingly went back to the trial Court and the Acting Judge held that the accounts were insufficient and by his decree he dismissed the suit. Thereupon there was an appeal by the Plaintiff to the Saddar Dewani Adalat and the appeal Court dismissed the appeal. An application for review was made which, again, was dismissed, and there was an appeal by the Plaintiff to the Judicial Committee of the Privy Council against the decree dismissing the suit.

The part of the judgment which is material to the present case is with reference to the order of the 22nd January 1857 by which the Saddar Dewani Adalat remanded the suit for the purpose of a fresh trial. The judgment of Sir James Colvile on this part of the case is at p. 359 as follows:—“Upon the question whether the Appellant is so bound by the order of the 22nd of January 1857, against which he did not appeal, that he cannot impeach the correctness of the remand, their Lordships have to observe that the order was an interlocutory one; that it did not purport to dispose of the cause; and consequently, that upon the principle laid down by this Committee in the case of Maharaja Maheshur Singh v. The Bengal Government, upon which their Lordships have very recently acted in a case from Oudh, the Appellant is not now precluded from insisting that the remand for the production of the accounts was erroneous; or that the cause should have been decided in his favour, notwithstanding the non-production of the accounts.”

On the principles which are there stated I am of opinion that the order of the Division Bench of this Court, remanding the case to the trial Court for trial, must be regarded as an interlocutory order and it was not a “decree” or a “final order” passed on appeal within sec. 109, cl. (a) of the Code of Civil Procedure.

It was further argued by the learned Counsel on behalf of the Plaintiffs that this Court should give a certificate under cl. (c) of sec. 109 of the Code of Civil Procedure. I have read the judgment of the Division Bench of this Court and I have no doubt that this is not a case in which this Court should grant a certificate under cl. (c) of sec. 109 of the Code of Civil Procedure.

For these reasons in my judgment this application must be dismissed. This decision governs the other application, so that both the applications are dismissed, with costs, five gold mohurs to cover both the cases.

Rankin, J.:— I agree. In this case the Plaintiffs sued for an ordinary partition decree. After written statement had been filed and at a time when the Defendant was moving the Court to appoint a Receiver it is alleged that a settlement took place between the parties. The question of the shares of the parties seems to have given rise to no controversy, and the character of the alleged settlement seems to have been that the Plaintiffs would take over all the liabilities shown in the books, that the Defendant would give up all rights to certain moveables, that she would have a right of residence in a certain house and that the jewellery would be divided in a certain way. The order from which it is proposed to appeal to His Majesty in Council is an order which merely holds that settlement or adjustment has not been made out.

Now, an application to record an adjustment under Or. 23, r. 3, is in some ways a very special matter, because it is a matter as to which a party is allowed to stand upon and to enforce an agreement which was not in existence at the date of the suit. It is a method whereby for convenience a party is allowed to enforce what is really a new cause of action altogether and this is done in order to avoid the necessity of abandoning one suit and starting another. The question, therefore, whether a decision that the adjustment is invalid, is a final order or not is rather different from the question which can arise with regard to any other of the stages of the suit.

We have to decide whether in this case the order from which it is proposed to appeal should be regarded as merely negativing one way of deciding a controversy in the case or should be regarded as a decision upon a substantive cause of action negativing the cause of action and, therefore, in part finally determining the rights of the parties. We have to decide whether the order is a final order for the pur-pose of saying whether, under the Code, the right of a party is to appeal at once. It seems quite clear that if he has no right to appeal at once, the only consequence is that when this Court had determined the rights of the parties in the suit the present Petitioner will be able to raise the question of the validity of the order which negatives the adjustment. I think the first principle to be kept in mind is what has been laid down by the late Mr. Justice Mookerjee in the very well-known case of Secretary of State for India in Council v. British India Steam Navigation Company: “Whether the character of finality can be rightly claimed in respect of an order must be determined with reference to the precise relation in which it stands to the proceeding before the Court.” In my judgment, the mere dismissal of an application for recording an adjustment coupled with an order that it is 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.

The contention that the order must be final because it set aside a decree cannot be sustained.

I therefore think that the present application does not come within the phrase “final order” in sec. 109 and I agree that there is no special case for giving a certificate on the principles applicable under cl. (c).

Applications dismissed with costs.

H.C.S