PREMLATA AGARWAL Vs. LAKSHMAN PRASAD GUPTA

JUDGEMENT

(1.) WE are of the view that this appeal should be allowed. It is by the judgment debtors from an order of Maharajan, J. who, agreeing with the Master, held that the order for costs made while disposing of O. S. A. 11 of 1962 was an interlocutory order to which Order 3. Rule 3 of the High Court-fees Rules would apply. In an execution petition of the respondent, one of the points was as to limitation. The Master held that the petition was barred. But Venkatadri. J. , on appeal, took a different view and remitted the execution petition for disposal on the other points raised. The judgment debtors filed O. S. A. 11 of 1962 against the order of Venkatadri, J. but failed. The appeal was dismissed with costs which were fixed at Rupees 1,000/- ; when the execution petition was resumed for further proceeding, objection was taken by the respondent that the order for costs in O. S. A. 11 of 1962 was in the nature of an interlocutory order and that unless in terms of O. 3, R. 3 of the High Court-fees Rules, the costs were paid then and there, the appellants would be prevented from raising further objections to the execution of the decree. The Master accepted this view and Maharajan, J. agreed with it.

(2.) IN our opinion, the order disposing of O. S. A. 11 of 1962, of which the direction to pay costs formed part, could in no sense be regarded as an interlocutory order. It is true that as pointed out by Maharajan, J. the word 'interlocution' is derived from the French words "inter" plus "liqui" to speak between. In that sense, any application made for an order for injunction or for receiver and the like, or interim directions to preserve the subject-matter of the suit, or any other order to subserve the ends of justice pending final disposal of the suit, which is between the institution and final disposal of the suit, may be regarded as an interlocutory application. But where the suit had ended in a decree and an application is taken out of execution, such an application, in our opinion, is not to be regarded as an interlocutory matter. The point raised by the judgment debtors was limitation, and, if that question was decided, as indeed it was decided by the Master, in the first instance in their favour, there was an end of the execution petition. Merely because in O. S. A. 11 of 1962 the learned Judges shared the view of Venkatadri, j. , in holding that the application was not barred by limitation, that would make no difference to the nature of the execution petition. Order 3, Rule 3, of the High court-fees Rules, did not define an interlocutory application or order. That order applies only to determine the court-fee, and so too, Order 14, Rule 10. Item 20, of the Original Side Rules is for the purpose of settling the procedure, that is to say, which applications should go before the Master. Neither of these orders will throw light upon what constitutes an interlocutory order or an interlocutory application, except for the purposes mentioned in or relevant to the particular orders. The order of the Master from which O. S. A. 11 of 1962 arose amounted to a decree as defined by the Civil P. C. , which determined the rights between the parties and finally too, subject, of course, to any appeal allowed by law. The decisive factor to find whether an order is interlocutory is whether it determined the rights of the parties and finally too, so far as the application went, which were in dispute or in issue in the suit or in the main matter. By that test we are of the view the execution petition, out of which the earlier appeal arose, was not an interlocutory one. Maharajan, J. apparently considered that the point was concluded by Tarapore and co. v. V/o Tractors Export, Moscow, But that related to elucidation of 'judgment in Art, 133 (1) in the context in which it occurred. But the question here is different as to whether an order made in an execution petition on one of the issues, if it is in favour of the judgment debtor and would put an end too to the execution petition, can be regarded as an interlocutory matter. Having regard to the normal sense in which the expression is used in judicial procedure, we think that the order in O. S. A. 11 of 1962 was not of that nature, but a decree, which disposed of the question of limitation finally between the parties. We are not concerned with the question whether such an order would be a judgment for the purposes of Article 133 (1 ).

(3.) THE appeal is allowed with costs, which we fix at Rs. 250/ -.