DEVI DAYAL Vs. SITA RAM

JUDGEMENT

(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:-

(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: