John Joseph Brito vs Mrs. S.S. Brito

Charles Gordon Spencer, Officiating C.J.

This is an application for leave to appeal to the Privy Council against an order passed by us in C.R.P. No. 423 of 1922 in which we refused to

interfere in revision with the order of a Subordinate Court restoring to file a suit which had been first disposed of upon an alleged compromise

between the parties.

Before we can certify that the case is a fit one for appeal to His Majesty in Council, we must be satisfied that the order passed by us was a final

order within the meaning of Section 109 C.P.C. What is a "" final order "" has been defined in Ramchand Manjimal v. Goverdhandoss Vishandas

Ratanchand ILR (1920) C 918 The Privy Council say that "" an order is a final one if it finally disposes of the rights of the parties. "" A similar

interpretation of the word "" final "" has been adopted in Sankar Bharati v. Narasimha Bharati ILR (1922) B 106 where Shah, C. J. says that "" a

final order is one which decides a cardinal point in the suit and finally disposes of the rights of the parties."" Crump, J., who sat with him, took the

word "" final "" to 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 merely subordinate or ancilliary matters for decision."" An English case, Croasdell and Cammel, Laird and Co. Ltd..

in re (1906) 2 KB 569 has been quoted before us in which it was held that "" an order passed by a Divisional Court setting aside an award made

by an arbitrator on the ground of misconduct on the part of the arbitrator was not a final order but an interlocutory one which involved no

determination of the rights of the parties as regards the matters which were in dispute in the arbitration."" Applying those definitions to the case

before us, let us see what is the result. The Court below restored the suit to file because it found as a result of an enquiry that the defendant caused

the plaintiff to sign a compromise petition by fraud and undue influence. The matter came up to us because it was argued that the Subordinate

Court had no power to make such an order u/s 151 C.P.C. We refused to interfere on the ground that the lower Court could have made such an

order in the exercise of its powers of review and because the merits of the case would be finally enquired into at the trial which was to take place

thereafter. Assuming that the lower Court''s order refusing to act upon the compromise did in some way dispose of the rights of the parties, our

order did not take away from or add anything to what the lower Court decided. We only decided the question of jurisdiction. The rights of the

parties in the suit were left open for decision and have since been decided. We are therefore of opinion that our order was not a final order within

the meaning of Section 109 C.P.C.

It is argued that, if the petitioner is not given leave to appeal against our order, he will be precluded from raising the contention that the matter

has been settled by compromise and making that a ground of appeal against the final decree, and, in that connection, reference has been made to

Section 105 which may also be read with Section 97 C. P. C, and to the right of a party to raise an issue in appealing against a final decree which

he has not appealed against in appeal from the preliminary decree. The answer to that argument is found in Venkataranga Rao v. Narasimha Rao

ILR (1913) M 509 : 26 MLJ 96, where it was pointed out by Miller and Sadasiva Iyer, JJ., that Section 105 does not apply to appeals to His

Majesty in Council and does not supply a guide to the interpretation of the word "" final "" in Section 109. In Saratmani Debi v. Rada Krishna

Banerjee (1909) CRILJ 336, Mookerjee, J., defined a ""final order "" as "" one which finally decides any matter which is directly at issue in the case

in respect of the rights of the parties."" With due respect, we consider that this, as it stands, is a definition which cannot be quite reconvciled with the

definition in ILR 47 Cal. and ILR 47 Bom., but as the learned Judge goes on to say that "" the answer to the question whether the order is final or

not must depend on whether it decides finally the cardinal point in the suit or an issue which goes to the foundation of the suit,"" there is no need to

quarrel with his first definition. Meghraj v. Bidyabati Koer (1912) CriLJ 279 and Lachmi Narain Marwari v. Balmakund Marwari (192P) 6 Pat LJ

116 are both cases in which an order was passed setting aside a decree dismissing a suit for default. It is unnecessary to canvass the correctness of

the view that such an order might be a final order, because the orders there passed do not in any way correspond to the order which we passed on

the Revision Petition in this suit. Assuming that the subordinate Judge''s order finally disposed of the rights of the parties to have their dispute settled

by compromise and was thus a "" final order "" our order did no more than refuse to interfere with that order upon a question being raised as to the

Subordinate Judge''s jurisdiction to pass it.

Holding that the order passed by us was not a final order, we dismiss the present application with costs.

C.M.P. No. 2887 of 1923, which is a petition for stay of proceedings, is dismissed without costs.