KULDIP SINGH Vs. MAQBUL KAUR

JUDGEMENT

(1.) THIS is a petition under Article 133 (1) of the Constitution for leave to appeal to-the Supreme court against an interlocutory order of this Court in Regular First Appeal No. 183-of 1955. When the appeal was filed by Mst. Maqbul Kaur, the office reported that prima facie the appeal appeared to be barred by time. The present petitioners who were respondents in that appeal also presented an application that the appeal was barred by time and prayed that the matter of limitation be decided before printing of the record. The question was gone into and decided in favour of the appellant, and printing of the record was directed to be proceeded with. It is against this order dated 4-12-1956 that the petitioners want to go in appeal to the Supreme Court.

(2.) IT is only against a "judgment, decree or final order" of this Court that an appeal is competent under Article 133 of the Constitution. The test for determining the finality of an order is whether the order finally disposes of the rights of the parties. The finality must be a finality in relation to the suit. The fact that the order decides a matter and even a vital issue is by itself not material, unless the decision puts an end to the suit: Mohammad Amin Brothers Ltd. v. Dominion of India, air 1950 FC 77 (A ). Applying this test to the present case the order cannot be regarded as final, for it does not finally dispose of the appeal, although it decides a vital point at issue between the parties.

(3.) SHRI Prem Chand Pandit, learned counsel for the petitioners, submits that the order, if it had been just the other way, viz. , in favour of the petitioners, would have finally disposed of the appeal as time barred and since he prays for that order being made in the proposed appeal, the order in question ought to be regarded as final. In my view the contention is not acceptable. The finality of the order depends upon the effect of the order that is actually made and not of the one that might or is sought to be made. It is not the potentiality of the point at issue to put an end to the legal proceedings that has to be looked into, but the actual order that is made thereon. If that had been the intention of the framers of the Constitution, an explanation similar to the one added to Article 132 could have been added to this Article as well. The. Explanation to Article 132 says--"for the purposes of this Article, the expression 'final order' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case. " this explanation is expressly made applicable only to Article 132, which strongly indicates that the same expression "final order" appearing in the Article that follows was not intended to have the same connotation for the purposes of that Article.