RAMESH CHANDRA PANDE Vs. RAMANUJ PANDE

JUDGEMENT

(1.) In 1928 there was a partition suit between two branches of the same family governed by the Mitakshara school each branch having an eight annas share. On 11 December 1930 there was a compromise between the plaintiffs and the defendants in the suit and accordingly a compromise decree was passed. On 15th November 1937, defendants 6 and 7, who were minors at the time of the compromise, filed an application in the Court which had passed the compromise decree for setting it aside substantially on the ground that their guardians were guilty of gross negligence; that the provisions of Order 32, Rule 7, Civil P. C, had not been complied with and that the compromise was prejudicial to their interest. The learned Subordinate Judge, to whom this application was made, held that the application was maintainable under Order 47, Rules 1 and 2 and Section 151, Civil P. C, and set aside the compromise decree. Thereupon the plaintiffs appealed to this Court against the order of the Subordinate Judge setting aside the decree and that appeal was allowed and the order of the Subordinate Judge was set aside. The present application has been filed on behalf of the minor defendants for leave to appeal to His Majesty in Council against the order of this Court. It is contended on behalf of the petitioners that the present case fulfils the requirements of Section 110, Civil P. C, inasmuch as the order of this Court reversing the order of the Subordinate Judge was a final order and the valuation of the subject-matter of the proceeding before the Subordinate Judge as well as of the subject-matter of dispute in appeal to the Privy Council is more than Rs. 10,000. On the other hand, it is contended on behalf of the opposite party that the order of this Court is not a final order and Section 110 has no application.

(2.) The learned advocate for the petitioners relies strongly on the decision of the Privy Council in Abdul Rahman V/s. D. K. Cassim & Sons . In that case it was held that an order of an appellate Court is not a final order within the meaning of Section 109(a), Civil P. C, unless it finally disposes of the rights of the parties in relation to the whole suit. Sir. George Lowndes who delivered the judgment in that case after referring to a decision of Lord Cave which was to the effect "that the test of finality is whether the order finally disposes of the rights of the parties" proceeded to observe as follows: It should be noted that the Appellate Court in India was of opinion that the order it had made "went to the root of the suit, namely the jurisdiction of the Court to entertain it", and it was for this reason that the order was thought to be final, and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under Section 109(a) of the Code.

(3.) Mr. L. K Jha strongly relies upon this observation and contends that inasmuch as the partition suit is no longer a live suit the order passed by this Court is a final order. The argument appears to me, however, to be a peculiar one. The partition suit has been long dead. It was disposed of in 1930 by a compromise decree and now after seven years some of the defendants have tried to re-open the decree. The expression "final order," as used in Section 109 contemplates a final order passed in a suit or a proceeding known to law. The order which was complained against before Chatterji J. and was corrected on 12 September 1944 was neither an order passed in a suit nor one passed in a proceeding known to law. The learned Subordinate Judge purported toi pass that order under Order 47, Rule 1, but in this Court the lawyers appearing for the petitioner had to confess that that provision does not apply. The only provision which is invoked on their behalf is Section 151, but that section (even assuming that it does apply) is only a residuary section and the remedy which may be granted under it is discretionary with the Court. That being so, we do not think that -an order like the present can be described as a final order as contemplated in Section 109(a) of the Code. Reliance was also placed by Mr. L. K. Jha on Kishan Chand V/s. Lachmi Chand but there the final order had been passed in a well defined proceeding under the Code of Civil Procedure in which the Court had to decide the rights of the parties. Under Section 151 the Court may or may not act as it is required to act. The distinction seems to us to be quite clear and we are strongly of the view that this order is not a final order. That being so, the application for leave to appeal must be dismissed with costs hearing fee three gold mohurs.