Sindhuram Chaudhury vs Krishna Dutta

Thadani, C.J.—This is a petn. by the judgment-debtor under Article 133 of the Constitution for leave to appeal to the S.C. of India from an order passed by this Ct. on 13-12-1949. The operative part of the order is in these terms:

This appeal is therefore allowed. The orders of the Cts. below are reversed & the case is remanded to the learned Muosiff for disposal of the appln. for delivery of possession according to law.

The only question argued before us was as to whether the appln. by the decree-holder for execution of his decree for possession was time barred. We came to the conclusion that the decree-holder''s appln. to execute the decree for possession was not time-barred & remanded the case to the Ct. that passed the decree for disposal of the decree holder''s appln. for delivery of possession in accord and with law.

The provisions of Article 133 of the Constitution of India are in these terms:

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies.

(a) that the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less then twenty thousand rupees or such other sum as may be specified in that be half by Parliament by law or

(b) that the judgment, decree or Aral order involves directly or indirectly some claim or question respecting property of the like amount or value or

(c) that the case is a fit one for appeal to the Suprem Court;

and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other then a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves Borne substantial question of law.

The question for out decision is as to whether the order passed by this Ct. on 13.12.49 is a final order within the meaning of Article 133 of the Const. Ind. We think that it is Ct. Harries, C.J. had occasion to consider the meaning of the expression "final order" in Raj kumar Chandra v. Midnapore Zemindary Co. Ltd. 54 C.W.N. 874. After referring to the case of AIR 1933 68 (Privy Council) Harries, C.J., observed that the observations of Sir George Lowndes in the above case were followed by the F. Order in Mohammad Amin BrOrs. Ltd. v. The Dominion of India AIR 1950 F.C. 77 wherein it was observed:

The expression ''final order'' in Section 205, Government of India Act, has been used in contradistinction to what is known as ''interlocutory order'' & the essential test to distinguish the one from the other has been discussed & formulated in several cases decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Ct. in their recent pronouncement in AIR 1949 1 (Federal Court) & the law on the point, so far as the Ct. is concerned, seems to be well settled. In full agreement with the decision of the Judicial Committee in Firim Ram Chandra Manjimal v. Firm Goverdhanda Vishinaas AIR 1920 P.C. 86 and AIR 1933 58 (Privy Council) & the authorities of the English Cts. upon which these pronouncements were based, it has been held by this Ct. that the test for determining the finality of an order Is whether the judgment or order finally disposed of the rights of the parties. To quote the language of Sir George Lowndes in AIR 1933 58 (Privy Council) 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 right of the parties have still to be determined, no appeal lies against it. The fact that the order decides an important & even a vital issue is, by itself, not material If the decision on issue puts an end to the suit, the order will undoubtedly be a final one, but it the suit is still left alive & has got to be tried in the ordinary way, no finality could attach to the order.

We think these observations apply with equal force to an order of remand, remanding an appln. for possession made in execution of a decree to be disposed of according to law. By our order, dated 13-12-1949, the execution proceedings were kept alive in that the question of the delivery of possession in accordance with law has still to be decided by the executing Ct. The fact that we have decided an important question of limitation is, as observed by their Lordships of the Section Order not, by itself, material.

In Barkat Ram v. Bhugwan Singh AIR 1949 E.P. 222, Ram Lal, C.J., and Bhandari, J. had occasion to interpret the meaning of the words ''final order'' in Section 109,Code of Civil Procedure In the case before them, the orders paased disposed of certain objections raised in execution proceedings, & the learned Judge pointed out that the orders passed by them did not decide the appln. & observed:

It has been pointed out repeatedly that the teat 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.

A Full Bench of the Lahore H.C. in Barkat Ram v. Rhagwan Singh AIR 1943 Lah. 140 had also occasion to consider the meaning of the words final order in Section 109, Civil P.C. The learned Judges, after citing certain decisions which appear at p. 145 of the report Barkat Ram v. Bhagwan Singh AIR 1943 Lah. 140 observed:

These remarks were no doubt made in a case in which the remand order had been passed on an appeal from a decree dismissing a suit on a preliminary point, but the same test would apply to execution proceedings &, as the execution appln. is still pending & is a ''live'' appln. the order cannot be said to be a final order.

Mr. Bora for the petnr. has referred us to a decision reported in Rahimbhoy Habibhoy v. C.A. Turner 18 I.A. 6. This decision was considered by Harries, C.J. & he pointed out that while it is true that Sir George Lowndes had said that the case of Rahimbhoy Habibhoy 18 I.A. 6, had been decided in the same way under the present Code, he nevertheless observed that the order must be final, & further that the finality must be a finality in relation to the suit.

In our view, the order against which leave to appeal is sought in the present case is not a final order & the question, therefore, of leave to appeal to the Section Order of India does not arise. In this view, it is unnecessary to express our opinion one way or the other on the point raised by Mr. Bora that assuming the order passed by us is a final order, his client is, as a matter of right, entitled to obtain leave to appeal as our order was passed before the Contend. came into force & the value of the property has been determined to be Rs. 10000 or more On an appropriate occasion we will decide the question as to the right of a party to ask for leave to appeal when the order appealed from was passed before the Const. Ind. came into force & relates to property valued at Rs. 10,000 or more & the order appealed from is a final order.

The result is that the petn. is dismissed with costs. Hearing fee is fixed at Rs. 50.

Ram Labhaya, J.

I agree.