JHABAR MAL CHOKHANI Vs. PUJAB PICTURES LTD

JUDGEMENT

(1.) This is an application for permission for leave to appeal to His Majesty in Council or the Federal Court against an order of this Bench whereby we set aside the order of a learned Single Judge of this Court appointing a provisional liquidator. The counsel for the applicant contends that the case falls within the purview of Clauses (a) and (b) of Section 109 and since the order of the learned Single Judge was set aside by us on appeal he is entitled to permission as a matter of right. I am of opinion that if at all permission can be granted under Clause (b) because our order arises out of proceedings pending on the original side. This however would not make any difference because the words used in both the clauses are "decree or final order" and what has to be decided is whether our order can be regarded as a final order. It was argued by applicant's counsel that any order which decides finally any of the matters agitated by the parties before the Court is a final order within the meaning of Clauses (a) and (b) but he has not been able to support his contention by any authority. On the other hand, there are a large number of cases in which it has been held that an order, in order to be final for purposes of appeal to the Privy Council, must be one deciding finally any question at issue in the cause or of the rights of any of the parties. The present applicant had made an application for liquidation of the respondent company and it was in the course of the liquidation proceedings that he applied for the appointment of a provisional liquidator. I cannot understand how the appointment of a provisional liquidator can be regarded as an issue in the ease. It may be that the decision of the question whether or not a provisional liquidator should be appointed will have an effect upon the liquidation proceedings, but the order appointing or refusing to appoint a provisional liquidator does not decide the rights of the parties.

(2.) In Chundi Datt Jha V/s. Pudamanand Singh Bahadur and Ors. 22 Cal. 928, permission was sought for an appeal to Her Majesty in Council against an order refusing the appointment of a Receiver in a suit. It was held that such an order did not finally decide any matter which was directly at issue in the case in respect of the rights of the parties, and was not final within the meaning of Clauses (a) and (b) of Section 595, Civil P.C., (which corresponds to Section 109 of the present Code) and Section 39, Letters Patent. Consequently, the leave was refused. This case appears to be analogous to the present case and I am of opinion that the principles enunciated therein must apply to the present case because the order appointing or refusing to appoint a Receiver as well as an order appointing or refusing to appoint a provisional liquidator are interlocutory orders.

(3.) The other case in point is Bajniti Prasad Singh and Ors. V/s. Nrisingha Charan . The appeal arose out of a mortgage suit. On the plaintiff's application, the Subordinate Judge made an order for the appointment of an interim Receiver. On appeal, the High Court set aside the Subordinate Judge's order and the plaintiff then presented an application for leave to appeal to His Majesty in Council against the decision of the High Court. While refusing the application it was held by the learned Judges that an order refusing the appointment of a Receiver was not a final order and there was no appeal from it to the Privy Council, inasmuch as such an order did not finally decide any matter which was directly at issue in the case in respect of the rights of the parties.