AMSINGH Vs. JETHMAL

JUDGEMENT

(1.) THIS is an application by defendant Amsingh for leave to appeal to the Supreme court of India under Article 133 of the Constitution of India read with Section 109 of the Civil Procedure Code.

(2.) THE brief facts giving rise to this application are that the plaintiff, opposite party, filed a money suit on 23rd of January 1952 in the Court of the Disrtict judge, Balotra against the petitioner's father for the recovery of Rs. 38,845/9/3 on the basis of two Khatas dated 15th of December 1947. The petitioner's father having died during the pendency of the suit, the petitioner was impleaded as his legal representative. The petitioner traversed the entire claim and took a number of pleas, one of them being on the ground of limitation. The trial Court decided only the issue regarding the limitation and dismissed the claim. The plaintiff came in appeal to this Court. That appeal was heard by a Full Bench and it was held that the plaintiffs' claim was within limitation. The decree of the trial Court was, therefore, set aside and the case was remanded for trial on the remaining issues. It is against that order dated the 26th of November 1954 that the defendant wants to go in appeal to the Supreme Court and requires a certificate for that purpose.

(3.) IT is urged on behalf of the petitioner that the value of the subject-matter of the suit in the Court of first instance was more than Rs. 20,000/-and the value of the subject-matter in dispute on appeal to the Supreme Court would also be the same, that the question of limitation involved is a substantial question of law and, therefore, he is entitled to the certificate asked for. The non-petitioner has, on the other hand, contended that this Court has not given any decree or final order and that Section 109 and 110 of the Civil Procedure Code are controlled by Article 133 of the Constitution and, therefore, the petitioner is not entitled to any certificate. It is not disputed even by the petitioner's learned advocate that Section 109 of the civil Procedure Code is controlled by Article 133 of the Indian Constitution because section 109, C. P, C. itself says that its provisions are ''subject to the provisions in chapter IV off Part V of the Constitution. " article 133 of the Indian Constitution lays down that an appeal shall He to the supreme Court from any judgment, decree or final order in a civil proceeding of a high Court in the territory of India if the High Court certifies that the case comes within Clause (a), (b) or (c) of that article. We have, therefore, first to see whether the order of this Court dated 26th of November 1954 comes within the purview of the terms "judgment, decree or final order". It is obvious that it does not amount to a decree because it is not a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matter in controversy to the suit. Learned counsel for the petitioner has urged that the said order amounts to a decree because it decides one of the matters namely the question of limitation which was in controversy in the suit between the parties, conclusively. In support of his arguments, he has referred to Mahaklal v. Madanlal, 1955 Raj LW 150 (A ). It may be pointed out that the facts of that case were very different. In that case, the plaintiff had brought a suit for redemption of a certain shop. It was dismissed by the trial Court holding that the plaintiff had no right to redeem the disputed property. On appeal by the plaintiff, the first appellate Court gave a decision that the plaintiff had a right to redeem. It also framed a decree but remanded the case to the trial Court saying that the trial Court had held the suit time barred without framing any issue on that point, that the parties were unable to lead their evidence on the question of limitation and, therefore, the trial Court was directed to frame an issue on the question of limitation, record the evidence which might be adduced by the parties and then dispose of the suit according to law. A second appeal was filed against the decree of the first appellate Court and therefore a preliminary objection was raised by the respondent to the effect that the appeal was not maintainable. It was held that the decision of the first appellate court amounted to a decree inasmuch as there was a formal expression of an adjudication by that Court and it had also conclusively determined the rights of the parties with regard to some of the matters in controversy in the suit. It is clear that in that case, the first appellate Court's decision was held tantamount to a decree because all the three ingredients which go to constitute a decree were present there. In the present case, the trial Court has not conclusively determined the rights of the parties in relation to the subject-matter of the suit. The term "determination of the rights of the parties" refers to the substantive rights of the parties with regard to the merits of the case and not to other disputes between the parties which are ancillary to the subject-matter of the suit. For instance, question relating to the jurisdiction of the Court or limitation and other preliminary points of the sort, if decided in favour of the plaintiff would not determine the rights of the parties in relation to the suit. The said case does not help the petitioner. In the present case, what has been decided is a preliminary point about limitation. The decision of the trial Court was that it could not enter into the merits of the case because the suit was barred by limitation. This Court has reversed that decision and only held that the suit is not barred and the trial Court is, therefore, free to enter into the merits of the case and determine the rights of the parties in accordance with law. Besides, there is no formal expression of adjudication of the Court inasmuch as no decree has been framed. The order of this -Court, therefore, does not amount to a decree and this objection is dismissed.