A.N. Bhandari, J.

1. The question which falls to be determined in this case is whether a certain order made by the High Court of Lahore can be regarded as a 'decree' or 'final order' within the meaning of Section 109, Civil P.C.

2. The facts of the case appear sufficiently from the judgments recorded in Bhagwan Singh v. Barhat Ram A.I.R. 1943 Lah. 129 and Barhat Ram v. Bhagwan Singh A.I.R. 1943 Lah. 140. It appears that as long ago as the year 1923 the Senior Subordinate Judge of Ambala passed a decree for the recovery of a sum of Rs. 68,000 odd in favour of Rai Bahadur Benarsi Das against the Bbarat National Bank Limited, Ambala, as principal debtor and against Lala Barkat Ram and certain other persons as sureties. The decree-holder presented the first application for execution on 26th April 1927, but this application was consigned to the record-room in 1931. On 19th August of that year, the decree-holder assigned the decree to one Sardar Bhagwan Singh and about a year later one Senior Subordinate Judge of Ambala transferred the decree to the Senior Subordinate Judge of Delhi without complying with the formalities of Rule 5 of Order 21, Civil P.C. On 12th January 1933 the assignee presented an application for the execution of the decree and on 21st October 1935 "the right, title and interest" of Barkat Ram in a partnership between himself and one Sardar Dharam Singh was sold. On 22-4-1939, Barkat Ram presented an application under Section 47 in which he raised two objections. The first was that all proceedings taken in the Court of the Senior Subordinate Judge at Delhi were wholly without jurisdiction as the decree passed by the Senior Subordinate Judge, Ambala, had not been transferred to the District Judge, Delhi, for execution in that Province as it should have been under Order 21, Rule 5, but had been transferred direct to the Senior Subordinate Judge, Delhi, in contravention of the express provisions of that rule. The second objection was that the application for execution presented on 12th January 1933 was barred by time inasmuch as the first application filed on 26th April 1927 had been presented more than three years after the High Court decree. The Senior Subordinate Judge overruled these objections and confirmed the sale. Lala Barkat Ram appealed to the High Court. Din Muhammad, J. allowed the appeal holding (a) that the objection in regard to jurisdiction was well founded inasmuch as the provisions of Order 21, Rule 5 had been clearly contravened; (b) that the plea that the first application was barred by time could not be raised after the lapse of six years during: which proceedings in the second application had been going on; (c) that the proclamation of sale was defective and (d) that the petitioner had been materially prejudiced by the irregularities committed. He accordingly set aside all proceedings taken on the transfer certificate in the Delhi Court including the sale which he declared to be null and void and dismissed the execution application. The decree-holder was dissatisfied with the order and preferred a Letters Patent appeal which came up for consideration before Tek Chand and Beckett, JJ. The learned Judges came to the conclusion that it was not a case of inherent lack of jurisdiction but merely of an irregularity in the initial procedure and that Lala Barkat Ram was not entitled after the lapse of so long a period to dispute the jurisdiction of the Delhi Court. They upheld the finding of the learned Single Judge that the plea of limitation was belated and could not be allowed to be raised at that stage. They held further that the proclamation of sale was absolutely misleading and that a sale conducted in pursuance of a proclamation of this kind was nothing but a farce. As a result of these findings, the learned Judges reversed the decision of the Single Judge, set aside the sale and remanded the case to the District Judge of Delhi for issuing a fresh proclamation and holding a fresh sale: Bhagwan Singh v. Barkat Ram A.I.R. 1948 Lah. 129.

3. Lala Barkat Ram was dissatisfied with this order and applied for permission to appeal to His Majesty in Council. He alleged that although the judgment had not finally determined the execution application and the case had been remitted to the executing Court for further proceedings, it was really a composite judgment consisting of (a) an order that the proceedings in. the Delhi Court were without jurisdiction, (b) an order that execution was within time, and (c) an order setting aside the sale held on 21st October 1935 and directing a fresh sale to be held. It was argued on his behalf that the orders in (a) and (b) were each tantamount to a decree and that so much of the judgment as dealt with these matters was appealable to His Majesty in Council. The Full Bench (Tek Chand and Bhide, JJ., Beckett, J. dissenting) came to the following con elusions, that is to say: (a) that the judgment of the Letters Patent Bench could not be split, up in the manner suggested so as to treat the findings on some of the points, namely, those of limitation and jurisdiction as decree and those on the others namely, objections to publication and conduct of sale as mere orders; (b) that the findings on the questions of jurisdiction and limitation even if they could be regarded as separate entities distinct from the rest of the judgment, could not be treated as decrees; (c) that the order of Letters Patent Bench was not a 'decree within the meaning of Clause (a) of Section 109, Civil P.C., and (d) that as the execution application was still pending and was a "live" application the order of the Letters Patent Bench could not be regarded as 'final order' within the meaning of Section 109(a), Civil P.C. In view of these findings; the Full Bench held that although the value of the subject-matter in dispute in the Court of first instance as well as in the proposed appeal was over Rs. 10,000 and the order of the Division Bench was one of reversal of that of the learned Single Judge, Lala Barkat Ram had not been able to establish that the order of the Division Bench was a "decree" or a "final order" within the meaning of Clause (a) of Section 109. The application for leave to appeal to His Majesty in Council was accordingly dismissed; Barkat Ram v. Bhagwan Singh A.I.R. 1943 Lah. 140. Barkat Ram then applied direct to His Majesty in Council for special leave to appeal but this application too was refused.

4. Having failed to obtain satisfaction from the higher Courts, Lala Barkat Ram had no alternative but to appear before the District Judge in pursuance of the order of the Letters Patent Bench dated 13th May 1942. The District Judge considered the question of drawing up a proclamation of sale, but he found that no better proclamation could be devised than the one drawn up by Lala Barkat Ram himself and submitted at an earlier stage of the proceedings. He accordingly drew up a proclamation on the lines of the draft submitted by Lala Barkat Ram and directed that the sale should be held on 9th July 1948. On 6th July 1948 i.e., some three days be fore the date of the proposed sale, Lala Barkat Ram preferred an appeal to the High Court and prayed that the sale be stayed. Cornelius, J. upheld the order of the trial Court and dismissed the appeal on 25th November 1946. An appeal under Clause 10, Letters Patent was preferred by the petitioner but was dismissed in limine by a Letters Patent Bench of the Lahore High Court on 24th January 1947. It is from this order that Lala Barkat Ram seeks to prefer an appeal to their Lordships of the Privy Council.

5. The principal ground on which leave for appeal is prayed for is that the order of the Letters Patent Bench dated 13th May 1942 and the order of Cornelius, J. dated 25th November 1946 as confirmed by the order of the Letters Patent Bench dated 24th January 1947 constitute a reversal of the "decree" or "final order" of Din Mohammad J. dated 5th February 1940. In the grounds of appeal, it was alleged that the appeal involves substantial questions of law on which there has been a difference of opinion between the various High Courts in India as well as between different Judges of the Lahore High Court.

6. This ground was, however, abandoned when the matter was argued before us. It is common ground that the value of the subject-matter in dispute in the Court of first instance as well as in the proposed appeal is well above Rs. 10,000 and that the order of the Letters Patent Bench dated 13th May 1942 read with the order of the Letters Patent Bench dated 24th January 1947 confirming the order of Cornelius, J. dated 25th November 1946 is one of reversal of that of Din Muhammad J. dated 5th February 1940. The only question is whether the orders passed by the two Letters Patent Benches can be regarded as a "decree" or "final order" within the meaning of the expressions as used in Section 109, Civil P.C.

7. The expression "decree" as defined in Section 2(2), Civil P.C., means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The language of this section makes it quite clear that an order can be a 'decree' only if it conclusively determines the rights of the parties and not when it merely determines an incidental question. The matter was examined with care by a Full Bench of the Lahore High Court in Barkat Ram v. Bhagwan Singh A.I.R. 1943 Lah. 140, to which a reference has already been made.

8. The learned Judges observed that when the effect of an order is to conclusively determine the rights of the parties with respect to a matter material to the due execution of the decree, the question would be under Section 47 and a decree within Section 2(2) from which an appeal would lie. An interlocutory order in the course of execution proceedings which decides, for instance, a point of law arising, interlocutory or otherwise, is not a decree within the meaning of Section 2(2), Civil P.C. Judged in the light of the test propounded by the Full Bench it seems to me that the interlocutory orders passed by the Letters Patent Benches on 18th May 1942 and 24th January 1947 cannot be regarded as a "decree" within the meaning of the expression as used in Section 109(a), Civil P.C., These judgments do not conclusively determine the rights of the parties. They decide merely that pleas of want of jurisdiction and limitation cannot be allowed to be taken up at a late stage and that the proclamation of sale was properly prepared. The rights of the parties may possibly be conclusively determined when the execution application itself is decided one way or the other but they have not been conclusively determined so far. Our attention has been invited to Durga Devi v. Hans Raj A.I.R. 1930 Lah. 187 in which it was held that an order staying execution till the decision of the appeal clearly falls under Section 2(2) read with Section 17, Civil P.C., and is appealable, but this decision has been completely superseded by the Full Bench decision inter partes in the case reported as Barkat Ram v. Bhagwan Singh A.I.R. 1943 Lah. 140.

9. The question now arises whether these two orders can be regarded as a "final order" within the meaning of Section 109, Civil P.C. The expression "final order" has come up for interpretation in a number of decided cases. In the case of Ram Chand Manjhimal v. Goverdhandas Vishan Das A.I.R. 1920 P.C. 86, Viscount Cave observed that an order is final if it finally disposes of the rights of the parties. In the case of Abdul Rahman v. D.K. Cassim and Sons

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 Section 109 (a) of the Code... In their Lordships' opinion it is impossible to distinguish the present case from that upon which Lord Cave pronounced. The effect of the order from which it is hero sought to appeal was not to dispose of finally 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. For these reasons their Lordships think that the appeal is incompetent.

In the case of Barkat Ram v. Sardar Bhagwan Singh A.I.R. 1943 Lah. 140, Tek Chand, J. who delivered the leading judgment of the Full Bench, cited the above observations with approval and expressed the view that the same test would apply to execution proceedings. It follows as a corollary that if an execution application is still pending and is a live application an interlocutory order passed during the pendency of the application cannot be said to be a final order.

10. Let us apply this test to the orders from which the petitioner seeks to appeal. These orders held in effect that pleas in regard to limitation or jurisdiction could not be taken up at a late stage of the proceedings and that the proclamation of sale as prepared by the District Judge after the case had been remanded by the Division Bench did not require amendment. These orders disposed of certain objections which were raised when the execution proceedings were pending in the executing Court: they do not decide the execution application itself. It has been pointed out repeatedly that the test to find out whether an order is a 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. The orders of the two Letters Patent Benches do not, in my opinion, finally dispose of the execution application and cannot be regarded as final order. That application is a live application and still awaits decision. It is no more a final order to-day than it was when the Full Bench pronounced its order on 25th January 1943. It is common ground that the right, title and interest of Barkat Ram has already been sold in the execution of the decree and that the judgment-debtor has raised a number of objections to the said sale. If the judgment-debtor has a right to appeal at all this right would probably accrue after these objections are finally disposed of.

11. For these reasons, I have no hesitation in holding that no decree or final order has been passed by the High Court of Lahore and consequently that the leave to appeal cannot be given. The application must be dismissed with costs.

Ram Lall, C.J.

I agree.