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1968 DIGILAW 52 (DEL)

DEVI DAYAL v. SITA RAM

1968-04-19

I.D.DUA, T.V.R.TATACHARI

body1968
I. D. Dua, C. J. ( 1 ) BY this application under Article 133 (1) (a), (b) and (e) of the Constitution of India and sections 109 and 110 of the Code of Civil Procedure, certificate for leave to appeal to the Supreme Court is sought against our order dated 5/2/1968 by means of which Execution First Appeal No. 75-D of 1962 (Sita Ram v. Devi Dayal) was allowed and the case remitted to the executing Court for selling the property in question. The value of the subject-matter in dispute, both in the Court below and on appeal in the Supreme Court, appears to us to be more than Rs. 20,000. 00. ( 2 ) THE question principally canvassed before us is whether the order from which the appeal is now sought to be preferred is a final order because if it is not a final order, then it is not open to this Court to grant the requisite certificate for appeal to the Supreme Court. On behalf of the petitioner-appellant, our attention has been drawn by Miss Urna Mehta, his learned Advocate, to the following decisions:- RAHIMBHOY Hiht not to be taken at all; and it must be held that the decree contains within itself an sertion that, if a balance is found against the Defendant on those accounts, the Defendant is bound to pay it. Therefore, the form of the decree is exactly as if it affirmed the liability of the Defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability 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 determined by this decree against the Defendant in such a way that in this suit it is final. The Court can never go back again upon this decree so as to say that, though the result of the account may be against the Defendant, still the Defendant is not liable to pay anything. That is finally determined against him, and therefore in their Lordhips view the decree is a final one within the meaning of sec. 595 of the Code. That is finally determined against him, and therefore in their Lordhips view the decree is a final one within the meaning of sec. 595 of the Code. They, therefore, think the case is one in which they should advise Her Majesty that the leave to appeal should be allowed on the usual terms as to security. " ( 3 ) SYED Muzhar Husein v. Bodha Bibi, In this case, an order of remand under section 562 of the Code of Civil Procedure, which was then in force, was held not to be a final order, but it was added that where a decree decides a cardinal point in issue in the suit, e. g. , the validity of a will, it is final, notwithstanding that by order purponing to be under Sec. 562 it remands the case for the decision of subordinate points. In taking this view, the earlier decision of the Board in the ease Rahimbhoy Hibibhoy was followed. M. Venkayya v. Venkatarama Rao, in which it was observed that an order can be held to be final order only if it finally disposes of the rights of the parties in the suit or proceeding, and it was added, to quote the exact words, "what matters is not the form but the substance. If in substance no right of the parties are outstanding to be decided in the suit, it cannot be said that a mere pendency of a suit on the file of a Court deprives the otherwise final adjudication of the rights of the parties by the High Court of its finality. " This view was stated to get support from the decision of the Supreme Court in Gurdwara Prabhandhak Committee v. Shiv Ratan Deo Surendranath Sarkar v. Sree Iswar Lakshmi Durga, head-note (c) of which is in the following terms: "it cannot be said that an order cannot be regarded as final if it does not completely dispose of the suit. It would not be considered as final if the rights of the parties were left still to be determined. If the rights of the parties to the suit had been determined and the suit was not finally disposed of in the sense of its being finally terminated in the Courts of India, because certain subordinate matters of detail have not been disposed of, the order would still be regarded as final within section 109. If the rights of the parties to the suit had been determined and the suit was not finally disposed of in the sense of its being finally terminated in the Courts of India, because certain subordinate matters of detail have not been disposed of, the order would still be regarded as final within section 109. " ( 4 ) REE, but conclusive so far as the matters dealt with by it are concerned. These observations, it must, however, be pointed out, were made while dealing with the scope and effect of section 28-A of the Provincial Insolvency Act of 1920 as amended in 1948. On behalf of the respondent, reliance has been placed on V. M. Abdual Rahman v. D. K. Cassim and Sons in which the head-note reads as under:- "thtest of finality is whether the order finally disposes of the rights of the parties" where order does not finally dispose of those rights, but leaves them to be determined by the Courts in the ordinary way, the order is not final. That the order went to the root of the suit namely, the jurisdiction of the Court to entertain it , it is not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still alive suit in which the rights of the parties have still to be determined, no appeal lies against it under S. 109 (a ). ( 5 ) A person brought a suit for damages, but became insolvent during the pendency of the suit. The Suit was dismissed for the Official Assignee s failure to furnish security. The appellate Court however held that the claim being one for damages did not vest in official Assignee and remanded the case for trial on merits. HELD : that the order of remand did no doubt decide an important and even avital issue in the case, but it left the suit alive, and provided for its trial in the ordinary way and hence no appeal lay against it under S. 109 (a ). " ( 6 ) FOR this view, reliance was placed on the Privy Council decision in Ramchund Manjimal v. Goverdhandas Vishundas, and the two earlier decisions of the Privy Council in the cases of Rahimbhoy Hibibhoy. and Muzhar Husein were distinguished. " ( 6 ) FOR this view, reliance was placed on the Privy Council decision in Ramchund Manjimal v. Goverdhandas Vishundas, and the two earlier decisions of the Privy Council in the cases of Rahimbhoy Hibibhoy. and Muzhar Husein were distinguished. Thetwo earlier cases, it was observed, had been decided with reference to the Civil Procedure Code of 1882 in which the wording of the relevant sections differed materially from that of the Code of 1908. Barkat Ram v. Bhagwan Singh, has next been relied upon. According to this decision, an order is final within section 109, Civil P. C. if it finally disposes of the rights of the parties and the finality must be a finality in relation to the suit. If after the order the suit is still alive suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109 (a ). Same test was held to apply to orders in execution proceedings. If an execution application, still pending and is a live application, aninterlocutory order passed during the pendency of that application cannot be said to be a final order. The test to find out whether an order is a final one, according to this decision, is not whether the point decided thereby is a cardinal one, but whether the right of the oarties in the suit are finally disposed of by it. The decision of the Privy Council in Abdul Rahmans case and a decision of the Lahore High Court in Barket Ram v. Sardar Bhagwan Singh, were relied on for this view. The decision of the Lahore High Court in Barket Ram s case was given by a full Bench of three Judges, in which it was held to be incorrect to say that every order passed in execution proceedings was a decree within the meaning of section 2 (2) of the Civil P. . C. and, therfore, appealable. As to whether or not the order impugned there (8) ILR 47 Cal. 918 (9) AIR 1949 EP 222 (10) AIR 1943 Lah. 140 339 A was a final order, Tek Chand and Bhide JJ. C. and, therfore, appealable. As to whether or not the order impugned there (8) ILR 47 Cal. 918 (9) AIR 1949 EP 222 (10) AIR 1943 Lah. 140 339 A was a final order, Tek Chand and Bhide JJ. , held that it was not a final order, whereas Beckett J. , dissented from this view and held that an order finally adjudicating on the rights of the decree-holder was final order and the application for leave to appeal to the Privy Council ought to be granted. Our attention has then beer drawn to decision of the federal Court in Mohd. Amin Bros. , v. Dominion of India , It has been observed in that case that the expression "final order" has been used in contradistinction to what is knwon 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. ( 7 ) ALL relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in S. Kuppaswami Rao v. The King, and the law on point, so far as this Court is concerned, seems to be well settled. In full agreement with the decision of the Judicial Committee in Ram Chand Manjimalv. Goverdhandas Vishindas, and Abdue, Rahnian v. D. K. Cassimand and Sons and the authorities of the English Courts upon which these 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 Abdal Rahman v. D. K. Cassim and Sons. (14) : "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. ( 8 ) 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. 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. "the decision of the Supreme Court in Prem Chand Staramdas v. The State of Bihar, dealt with the Bihar Sales Tax Act and held that an order of the High Court declining to call upon the Board of Revenue to state a case under section 21 of that Act was not a final order and therefore, not appealable. Reliance has further been placed on Nidhpal Shurma v. Union of India, where it was observed that the term "civil proceeding" for the purposes of Arlicle 133 (1) of the Constitution would mean the execution proceeding based on the application of the decree-holder for execution of the decree and the test of finality within Article 133 was laid down as under:-- " (1) The order is not an interlocutory order. (2) Even though it is an order disposing of the proceeding before the High Court finally, it does not leave the original proceeding in the court below alive for determinalion of the rights and liabilities of the parties. (3) The order amounts to a final decision relating to the rights and liabilities of the parties in dispute in the civil proceeding, or the order, of its own force, binds or effects the rights and liabilities of the parties. " ( 9 ) IN so far as this decision is concerned, the petitioner s learned counsel has submitted that the order of this Court, of its own force, binds and affects the rights and liabilities of the parties in regard to the liability of the property to be sold in excecution of the decree. The decision of the Rajasthan High Court in Amsingh v. Jethmal relied upon by the respondent, lays down that while that reversing the decision of the trial Court, the decision of the High Court on a question of limitation is not final order when the suit is remanded to the trial Court and it is kept alive. The decision of the Rajasthan High Court in Amsingh v. Jethmal relied upon by the respondent, lays down that while that reversing the decision of the trial Court, the decision of the High Court on a question of limitation is not final order when the suit is remanded to the trial Court and it is kept alive. The order of the High Court on a point of limitation only in execution proceedings and remanding the execution case to the Court below was held not to be a final order in Ramaswami Chettiar v. Official Receiver it being observed that such an order did not put an end to all the points in dispute between the parties. An order of the High Court upholding the subordinate Court s jurisdiction to execute the decree and directing its execution, was held not to be a final order by the Patna High Court in Birwar Prasad Siagh v. Rameswar Lal Bhagat. In our opinion, the decision of the Privy Council in the case of Abdul Rahman and of the Punjab High Court in Barkat Ram, lend support to the view that if the execution proceedings are still live proceedings in which the question relating to the execution of the decree is still to be determined, then the order may not be held to be a final order so as to be appealable in the Supreme Court under Article 133 of the Constitution. That the expression "final order", as used in Article 133, is intended to have a somewhat narrower meaning, seems also to be evident from the Explanation added to Article 132, giving to this expression a relatively wider concept for the purposes of that Article. It is true that plausible arguments can be urged that, in the present case, the rights of the parties in regard to the saleability of the property have been determined, but we are inclined, as at present advised, to think that this would not be conclusive on the competency of the appeal from this order because like the suit in the case of Abdul Rahman, the execution proceeding is still a live proceeding. The order disposing of the objections to the the saleability of the property in question on the plea of res judicata, may well be considered to be similar to an order disallowing a plea of limitation. The order disposing of the objections to the the saleability of the property in question on the plea of res judicata, may well be considered to be similar to an order disallowing a plea of limitation. The rights of the parties to the execution proceedings still remain to be adjudicated upon and all that has a been determined is the objection questioning the liability of a property sought to be sold in execution of the decree. The contention that the petitioner would be remediless on the view we have taken, ignores that he can in a fit case seek special leave under Article 136 of the Constitution. ( 10 ) FOR the reasons foregoing, we are inclined, as at present advised, to hold that in this case the petitioner is not entitited to the certificate under Article 133 of the Constitution, the impugned order not being a final order. The application, therefore, fails and is dismissed, but without any order as to costs.