JUDGMENT : DIXIT, J. 1. This is an application for leave to appeal to the Supreme Court from an order of a Division Bench of this Court dated 9-7-51, passed in an appeal arising out of execution proceedings of a mortgage-decree. After the sale of the mortgaged property, the decree-holder applied to the executing Court for the sale of a house and a shop situated in Sarafa Lashkar alleging that the decree in his favour contained a direction that if the proceeds of the sale of the mortgaged property were insufficient to satisfy the decree, the deficient amount shall be realisable from the house and shop in Sarafa Lashkar and that the decree has remained unsatisfied even after the sale of the mortgaged property. When a proclamation of the sale of the property situated in Sarafa Lashkar was issued, the applicant came forward and objected to the sale claiming that he was a bona fide purchaser of the property in Sarafa Lashkar from the judgment-debtor; that the decree did not create a charge on the property and consequently it was not liable to be sold in execution of the decree. The Court executing the decree rejected the applicant's contention that no charge was created by the decree against the property situated in Sarafa Lashkar. The applicant then came up in appeal to this Court. The appeal was rejected by this Court. We held that the decree created a charge on the property situated in Sarafa and directed the executing court, to decide the other objections of the applicant, namely, that the charge was not enforceable against him as he was a bona fide transferee for value without notice of the charge and the objection that as the sale proceeds of the mortgaged property were sufficient to satisfy the decree, the contingency contemplated in the decree for enforcing the charge had not arisen. 2. We have heard Mr. Shiv Dayal in support of this application and in our opinion, it must be rejected. The applicant seeks leave to appeal under Article 133 of the Constitution of India. Sub-clause 1 of this Article states that 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 gives the certificate of the nature indicated in that sub-clause. Sub-clause 1 of this Article states that 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 gives the certificate of the nature indicated in that sub-clause. The order which was passed by this Court on 9-7-51 is on the face of it, not a final order. While holding that the decree created a charge, this Court directed the executing Court to determine the other objections of the applicant as regards the enforceability of the charge and thus decide the question whether the property situated in Sarafa Lashkar could or could not be sold in execution of the decree. Our order did not put an end to all the points in dispute between the parties about the sale of the property. It was, therefore, not a final order. The question as to what is a "final order" for the purposes of section 109 C. P.C. and section 205 of the Government of India Act, 1935, has been considered in a number of cases. In - 'Mohammad Amin Brothers Ltd. v. Dominion of India', AIR 195Q FC 77, the Federal Court observed: "The expression 'final order' in section 205, Government of India Act, has been used in contradistinction to what is known as 'interlocutory order' and the essential test to distinguish the one from the other has been discussed and formulated in several cases decided by the. Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in - 'S. Kuppuswami Rao v. The King', 1947 FCR 180: AIR 1949 FC 1: 49 Cri LJ 625 and the law on the point, so far as the Court is concerned, seems to be well settled. In full agreement with the decision of the Judicial Committee in - 'Firm Ram Chandra Manjimal v. Firm Govardhan Das Vishidas', 47 Ind App 124 : AIR 1920 PC 86 and - 'Abdul Rahman v. D.K. Cassim and Sons', 60 Ind App 76: AIR 1933 PC 58 , and the authorities of the English Courts upon which the pronouncements were based, it has been held by this court 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 - 'Abdul Rahman v. D.K. Cassim and Sons', 60 Ind App 76: AIR 1933 PC 58 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. The fact that the order decides an important and even a vital issue is, by itself, not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive' and has got to be tried in the ordinary way, no finality could attach to the order." These observations apply with equal force in the construction of the expression 'final order as used in Article 133. Very recently, the High Courts of Calcutta, Madras and Assam considered the meaning of the words 'final order' for the purposes of Article 133 and following the Federal Court decision reported in - 'AIR 1950 FC 77' held that the finality of the order under Article 133 must be in relation to the suit, that is, it must put an end to the suit altogether. An order of remand cannot be described as a final order and, therefore no appeal lies from it to the Supreme Court under Article 133. The Calcutta case - 'Chandra Singh v. Midnapore Zamindari Co. Ltd.', AIR 1951 Cal 300 , related to an order of remand in . suit; but in - 'Sindhuram v. Krishna', AIR 1951 Assam 73, the Court held that an order deciding that an application for delivery of possession in execution of a decree for possession was not time-barred and remanding the case to the Court below for disposal of the application according to law was not a 'final order' within the meaning of Article 133. The decision reported in - 'Ramaswami Chettiar v. Official Receiver Ramanathaouram at Madhurai', AIR 1951 Mad 1051 also" lays down that if the High Court finds that the petition for execution of the decree was in time and remands the case to the subordinate Judge to take steps in furtherance of execution, then such an order is not a 'final order' from which leave to appeal can be granted under Article 133. It is unnecessary to dwell further on the question as the learned counsel for the applicant conceded before us that the order dated 9-7-51 of fins Court was not a final order. 3. The principal ground on which he sought leave to appeal was that the order passed by the Division Bench must be regarded as a "decree". In our opinion, there is no force in this contention. The expression "decree" as defined in section 2(2) C.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. It is clear from this definition 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. An interlocutory order in the course of execution proceedings which decides. for instance a point of law arising incidentally is not a decree within the meaning of section 2(2) C.P. Code. The dispute between the parties in the present case was whether the property situated in Sarafa Lashkar could be sold in execution of the decree. The lower Court held that the decree created a charge. All that this Court held was that the executing Court was right in holding that the decree created a charge. But after the order dated 9-7-51 the questions whether the charge is-enforceable and the property situated in Sarafa Lashkar can be sold are still to be determined. We no doubt, decided an important and vita issue. But the question which was determined did not conclusively decide the rights of the parties with regard to the matter in controversy between them, namely, whether the property could be sold to realise the balance of the amount due on the decree. These rights can be said to be conclusively determined only when after hearing all the objections of the applicant the lower Court decides one way or the other about the decree-holder's petition to realise the balance of the amount due on the decree by the sale of the property situated in Sarafa Lashkar. The rights have not been conclusively determined so far. The rights have not been conclusively determined so far. For these reasons, we have no hesitation in holding that the order dated 9-7-51 of this court is not a decree and consequently the leave to appeal cannot be given. 4. The application is, therefore, rejected. 5. CHATURVEDI, J. :- I agree.