FIRM GANESHDAS KISHNAJI Vs. MURLIDHAR

JUDGEMENT

(1.) THIS is an application under Article 133 of the Constitution of India for leave to appeal to the Supreme Court from our decision in 'Murlidhac v. Firm Ganeshdas Kishnaji'. The appeal arose out of a suit in which the Plaintilf Murlidhar alleged that the Defendant firm was accountable to him upon several forward transactions' in gold and silver and prayed for a, decree for the rendition of accounts and for payment of such sum as may be found due to him, and in the alternative if the account had been rendered to him, fur the reopening of the account.

(2.) THE valuation of the subject -matter1 of the dispute in the original Court, as well as in the appeal before us was Rs. 21,000/ -; the decree sought to be appealed from is not one of affirmance of the decree passed by the trial Court. The Petitioner is, therefore clearly entitled, as of right, to a certificate or leave to appeal. Mr. Sanghi learned Counsel for the non -applicant, however, on the autherity of - 'Kuppuswami Rao v. The King' : AIR 1949 FC 1 (A) and 'Mohammad Amin BrOrs. Ltd. v. Dominion of India', AIR 1950 FC 77 (B), contends that under Article 133 no appeal is Provided for against a preliminary decree.

(3.) IT will be noted that an order in Rahlmbhoy's case was one which under the present Code, would be a preliminary decree. This case was referred to in ' : AIR 1933 P.C. 58 (C) where the test for die determination of the finality of an order was laid down. The Privy Council distinguished it by saying that the order tiieiein decided the cardinal point and said that in that case, i.e. in Rahim -bhoy's caso un appeal to His Majesty in Council would have lain as of right under 'the provisions -of the present Code, i.e. die Code of Civil Procedure of 1908.