KISHANLAL Vs. TADAKAMALLA SITARAMA CHANDRA RAO

JUDGEMENT

(1.) This application is for leave to appeal to the Supreme Court against an Order in C. M. P. No. 10501 of 1960. C. M. P. No. 10501 of 1960 is one filed under section 152, Civil Procedure Code, for amending the decree by altering the operative portion of the Judgment of this Court passed in F. A. 1126/4 of 1353 Fasli. The ground taken therein has been that this High Court inasmuch as it has held that the N.G.P. notes have not been lost and validly transferred in favour of defendant 2, the order which the Court could rightly pass is one dismissing the suit itself, but that the High Court altogether took an untenable view in affirming the decree of the trial Court. It may be pertinent to observe that while the amendment petition viz., C.M.P. No. 10501 of 1960 was thus filed, no attempt seems to have been made at all to file an application for leave to appeal to the Supreme Court as against the decree of this Court in the First Appeal. It is only after the dismissal of the so called amendment petition that this application for leave to appeal to the Supreme Court has been filed. Mr. Jaleel Ahmed for the petitioner contended firstly that since leave is asked for to appeal against the order passed under section 152, Civil Procedure Code, it must be taken that the petitioner is praying for the leave as against a final order, which falls under Article 133 of the Constitution. In support of this contention, the learned Advocate relied upon the decisions in Hori Ram Singh v. Emperor, (1939) 2 M.L.J. (Sup.) 23 : A.I.R. 1939 F.C. 43 and Ganpat Rai v Chamber of Commerce, (1952) S.C.J. 564 : A.I.R. 1952 S.C. 409. There can be no dispute in regard to the dicta which the decisions lay, but always the difficulty comes in the application of the dicta to the particular facts of the case. The learned counsel, it must be said, in putting forth his argument in that manner wants to assume that every application purporting to be under section 152, Civil Procedure Code, must be taken to be so, and that any order passed in regard to it will always be a final order. This would be in our view ignoring the effective device a litigant can really adopt to make it appear that even any interlocutory matter could be brought under the category of final orders. In any case, having regard to the facts of the instant case, it could be seen that this Court in disposing of the First Appeal has in spite of the finding that there has been a transfer of the N.G.P. notes still affrmed the decree of the lower Court In such a case, there is no room left for any litigant to complain and say that the judgment itself is not in accordance with the decision arrived at by this Court.

(2.) If thereafter the litigant merely chooses to file an application, calling it an amendment petition, we are of the opinion that by styling it that way, it is not one appropriately under section 152, Civil Procedure Code, and an order passed therein could not be a final order. This distinction, we are of the firm view, obtains in this case ; and therefore it not necessary for us to discuss the decisions cited by the learned counsel. It is next contended, relying upon the pronouncement of the Privy Council, in Abdul Rahman v. Cassim & Som, (1933) 64 M.L.J. 307 : L.R. 60 I.A. 76 : A.I.R. 1933 P.C. 583 (P.C.), that the finality of an order has to be tested with reference to the disposal of the rights of the parties and that applying that test, an order refusing amendment under section 152, Civil Procedure Code, should be construed as falling under the category of a final order. In answer to this, it must be pointed out that the disposal of the First Appeal itself by this Court has indeed decided the issues between the parties so as to result in a decree defining precisely what the rights of the parties are, and that when an application merely says that the decree shall not be interfered with by way of amendment it is not possible in our view to construe that ordei refusing an amendment as one which again in any manner interferes with or reopens and decides matters already concluded by the First Appeal. In that view, we are unable to see that the rights of the parties are being determined by this amendment petition afresh. We cannot therefore find that the pronouncement of the Privy Council has a bearing on the present case : Then the learned counsel relied upon Kishan Chand v. Lachami Chand, A.I.R.1933 All. 15, in which a Division Bench had to construe the nature of an order passed under section 109, Civil Procedure Code. The learned Judges pointed out that an order setting aside an ex parte decree and allowing an appeal would be a final order so as to attract the provisions of section 109, Civil Procedure Code. It is not possible to gather from this decision that the mere order to set aside an ex parte decree by itself is one which apart from the order allowing the appeal could be taken to be a final order. It is therefore not possible on the analogy of what has been decided in this case to arrive at the conclusion that the dismissal of an application under section 152, Civil Procedure Code, is by itself a final order, when no amendment as applied for has been allowed or even when the application under section 152, Civil Procedure Code, itself is incompetent. The above reasons make us believe that the contention of the learned counsel that leave could be granted under Article 133 of the Constitution against orders under section 152, Civil Procedure Code, when that application is dismissed, is not sustainable.

(3.) We are therefore definite that the rejection of the petition under section 152, Civil Procedure Code, is not a final order. There is therefore no merit in this petition. It is dismissed. Petition dismissed.