Sathappa Chetty and Others vs S.N. Subramanian Chetty and Others

It is not disputed that the provision in Section 110, C.P.C. as to value of subject matter is complied with in this case. The objection we have to

deal with is only that our decision in respect of which leave is asked for, is not a decree or final order, within the meaning of Section 109 :

Petitioners contend that it is the latter.

In the definition of decree in Section 2(2) C.P.C. the antithesis is between ""final"" and ""preliminary"", decrees of the latter description being

defined as those, after which further proceedings, have to be taken before the suit can be completely disposed of. But in all the authorities at

present relevant the opposition is for our present purpose regarded as being between ""final"" and ""interlocutory"" and ""interlocutory"" is defined in

Wharton''s Law Lexicon as ""that which is decided during the course of an action and does not determine it"". This definition at first sight, differs little

from the definition of ""preliminary"" in the Code above referred to. But when it was relied on in Standard Discount Co. v. La Grange (1877) 3 Ch.

D. 67 it was, as the judgments show, accepted only subject to the modification, that the matter decided did not determine any substantive right of a

party, Cotton, L.J. observing that ""without using an exhaustive definition, it may be laid down that an order is interlocutory, which directs how an

action is to proceed"". That authority is important, because it with others in the same sense Salaman v. Warner (1891) 1 Q.B. 734 and Bojson v.

Altricham Urban Council (1903) I.K.B. 547 was adopted by the Privy Council in Ramchand Manjimal v. Goverdhandas Vishandas Redan Chand

ILR (1921) C. 918 as the basis for its conclusion that an order is final, if it finally disposes of the rights of the parties. And this it may respectfully

be observed is merely a general statement of what under lies the decision in Rahimbhoy Habibhoy v. C.A. Turner (1890) 15 Bom. 155, and Bhup

Indar Bahadur Singh v. Bijai Bahadur Singh ILR (1900) All. 152 (P.C.) where accounts were ordered to be taken on findings in favour of the

liability to account of a party, and in the former, it was said: ""Now that question was the sole question in dispute at the hearing of the cause and it is

the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability and that has

been dermined by this decree against the defendant in such a way that in this suit'' it is final. The Court can never go back again on this decree, so

as to say, that, though the result of the account may be against the defendant, still he is not liable to pay anything"". Shortly, it is the effect of the

order as determining the disputed right of a party not as formally concluding the proceedings, which must be regarded as decisive and that

distinction is observed with almost absolute consistency throughout the cases above referred to. For although Fry, J. in Salaman v. Warner (1891)

1 Q.B. 734 referred to the determination of the action "" the references in the other judgments therein and in the other two cases are to ""the matter

in dispute"" and ""the rights of the parties"".

Ram Chand Manjimal v. Goverdhandas Vishandas Ratan Chand ILR (1921) C. 918 was decided under the present Code; and, as the law is

stated clearly there and in the other decisions of the Privy Council above referred to, it is unnecessary to deal at length with other cases decided in

the Indian High Courts, on which respondent relies. It may however be observed that Tirunarayana v. Gopalaswami ILR (1889) Mad. 349

followed in Mangayya v. Venkatrama Murihi (1918) M.W.N. 844 was based on Mahant Ishivargar Budhgar v. Chandasama Amarasang I.L.R.

(1884) 8 Bom. 548 and that the last mentioned decision was referred to in argument in Rahim Bhoy Habi Bhoy v. C.A. Turner (1890) 15 Bom.

155 but apparently was not accepted as good law. The test of the finality of an order being as stated above, we apply it to the proceedings before

us.

The nature of those proceedings can be explained shortly. Plaintiff, now the respondent, sued for dissolution of partnership and connected

reliefs, including the taking of an account, and failed in the court of first instance on two grounds, of which only the second, that his suit was barred

by limitation, is at present material. The finding on that point and our reversal of it respectively negationed and declared his right to relief; and the

result as regards the right to account between the parties the taking of which plaintiff''s claim involves, is the same as that indicated in Rahim Bhoy

Habibhoy v. C.A. Turner ILR (1890) B. 155. Our direction to the lower court to frame preliminary decree and take further proceedings according

to law was merely consequential on our decision and did not, we must hold, affect its character as a final order.

In these circumstances we allow the petition with costs and certify that as regards value and nature the case fulfils the requirements of Section

110 of the Civil Procedure Code.