1. This is an application for leave to appeal to His Majesty in Council, arising under the following circumstances:-
2. A suit was brought by one Gangappa Rudrappa Hundekar in the Court of the First Class Subordinate Judge at Bijapur substantially to have it declared that he was the adopted son of the deceased Rudrappa Hundekar against Chanbasava kon Rudrappa and others. The suit was decided on the 12th February 1909 in favour of the plaintiff. Chanbasava preferred Appeal No. 61 of 1909 to this Court against the decree in the said suit. On the 7th August 1909 an application was made by one Virupakshappa to be joined as a co-appellant with Chanbasava and to continue the appeal with her alleging that he was adopted by Chanbasava on the 12th May 1909. The application was granted on the 13th August 1909 subject to any objections the respondents might have to urge at the hearing. Chanbasava is stated to have died about 15th October 1910 but apparently no application was made by any one to be brought on the record as her legal representative. Virupakshappa died on the 3rd July 1912.
3. One Gangappa Revanshidappa Hundekar made an application (No. 547 of 1912) to this Court to be brought on the record as the legal representative of the deceased Virupakshappa. He claimed to be his legal representative on the strength of a will said to have been executed by Virupakshappa. An issue was sent down to the lower Court as to the factum and validity of the alleged will. The lower Court recorded the evidence and returned its finding to this Court. The application was then heard by us with the result that the will of Virupakshappa was held not proved. We accordingly rejected the application on the 29th August 1913. On the same day we granted the application of the natural heirs of Virupakshappa (Civil Application No. 572 of 1912) to be brought on the record as the legal representatives of Virupakshappa. The main appeal (No. 61 of 1909) is still pending in this Court.
4. The petitioner (Gangappa Revanshidappa Hundekar) now applies to this Court for leave to appeal to His Majesty in Council against the order dated 29th August 1913.
5. It is not disputed in this case that the value of the subject matter of the suit, and the value of the subject matter on the proposed appeal is far in excess of rupees ten thousand. The order, which is sought to be appealed from, involves questions respecting property exceeding rupees ten thousand in value.
6. It is not suggested by the petitioner that there is any substantial question of law. But it is argued that as the order of this Court does not affirm any decision of the lower Court it is not necessary that the proposed appeal should involve any substantial question of law. So far I think the argument is good. In this case there is no decision of the lower Court, which this order can be said to affirm. The order is made on an application to this Court, with which the lower Court would have nothing to do in the ordinary course. An issue was sent down to the lower Court apparently for the convenience of the parties to have the voluminous evidence recorded by that Court and a finding was called for. This finding or opinion is clearly not a decision of the lower Court within the meaning of s. no, Civil Procedure Code. Under Order xxii Rule 5 read with Section 107, Civil Procedure Code, it was the duty of this Court to determine the question. I am, therefore, of opinion that if the petitioner is otherwise entitled to appeal he has to satisfy only one condition under s. no, Civil Procedure Code, relating to the value of the property involved in the suit of the appeal and that the case fulfils that condition.
7. The important question that remains to be considered is, whether the petitioner is otherwise entitled to appeal to His Majesty in Council. It is conceded by the learned pleader for the petitioner that the order complained of is not covered by Section 109, Civil Procedure Code. It is clear that Clauses (b) and (c) have no application and Clause (a) does not apply, as the order is not passed on appeal at all. The appeal is still pending and no order is made thereon. This is only an order on an application in the appeal. But it is urged on behalf of the applicant that he has got a right to appeal to His Majesty in Council under Clause 39 of the Amended Letters Patent. Under this clause any person may appeal to His Majesty in Council from any final judgment, decree or order of any Division Court from which an appeal shall not lie to this High Court under the provisions contained in the fifteenth clause of the Letters Patent. The order, no doubt, is an order of a Division Court from which there is no appeal to this Court under the fifteenth clause of the Letters Patent. The question therefore, that remains to be considered is whether it is a final judgment or order within the meaning of Clause 39. I think that this is not a final judgment or order as contemplated by the Letters Patent. It is an order made in a proceeding incidental to the appeal. It is an order which the Court can make under Order xxii of the Code of Civil Procedure for the purpose of ascertaining the legal representatives of the deceased Virupakshappa. The order does not affect the (merits of the appeal, and it certainly does not decide any matter in dispute between the parties to the appeal.
8. A final judgment or order has been thus described in-Halsbury's Laws of England, Vol. 18, para 490:-
A judgment 011 order which 'determines the principal matter in question is termed 'final'. An order which does not deal with the final rights of the parties but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to by worked out, is termed 'interlocutory.'
* * * The decisions on the question whether an order is 'final' or 'interlocutory,' therefore, must be grouped with reference to the particular purpose for which each was given.
9. If we apply this test in the present case-and I see no reason why it should not be applied-it is clear that the order in question is not final but interlocutory. It decides no matter in appeal. It is made before judgment in appeal and gives no final decision on the matters in dispute but is merely on a matter of procedure. Even Virupakshappa's status is not finally determined yet. He was brought on the record as a co-appellant in 1909. In consequence of his death having occurred before any adjudication of his rights, it became necessary to determine as to who should be allowed to occupy his place in the litigation for the purpose of continuing the appeal on his behalf. The matter in dispute between the parties would be obviously the matter in appeal and not in an incidental proceeding of this kind : see Bozson v. Altrincham Urban Council (1900) 1 K.B. 547. The observations of Sargent C.J. in Aden Sha Sabit Ali v. Cassirao Baba Sahab Holkar (1882) I.L.K. 6 Bom. 360 lend support to the conclusion that the order in question is not 'final.'
10. It appears to me that the result of holding the order to be final within the meaning of Clause 39 of the Letters Patent would be somewhat anomalous. If such a question had arisen during the pendency of the suit in the lower Court, and if an order, such as we have made, had been made by the trial Court, it is clear that no appeal could have been preferred against the order. This follows from the fact that no appeal is provided by Order XLIII, Rule 1, against such an order under Order XXII, Civil Procedure Code while, according to the petitioner's contention, there could be an appeal to His Majesty in Council, when such an order is made by the High Court in a proceeding in an appeal arising out of the same suit. I do not think that such an anomaly exists.
11. It is also clear that a judgment or order in order to be final within the. meaning of Clause 39 of the Letters Patent must finally determine the rights of the parties. In other words if it be not appealed from, the adjudication must be final. In the present case it is not denied that in spite of this order, the petitioner is entitled either to apply for the probate of the will or to enforce his rights under the will by a separate suit. The adjudication is not, therefore, final. It may be that the question of petitioner's right to represent the deceased Virupakshappa in this litigation is finally decided. But that is a matter of procedure. So far as the substantial rights of the petitioner are concerned, it cannot be suggested that the adjudication is final.
12. For these reasons, I refuse to grant the certificate prayed for, and discharge the rule with costs.
13. I concur.