1. This is an application under Section 109 (a) of the Code of Civil Procedure for leave to appeal to the Privy Council. We have treated this application as an application for leave to appeal under Section 109, cl, (a), and also under Clause (c), though no specific prayer is made in the application for leave to appeal under Section 109 (c), Civil Procedure Code.
2. This is a dispute between two rival claimants to the property which is in the possession of the District Judge under Regulation VIII of 1827. The lower Court held that the suit was barred by limitation. On appeal, this Court came to a contrary conclusion and remanded the suit for decision on the merits. The question, therefore, in this application is whether an order reversing the decision of the lower Court on the point of limitaion and remanding the case for decision on the merits is a 'final order' passed on appeal by the High Court within the meaning of Section 109 (a) of the Code of Civil Procedure.
3. Several cases were cited before us. It, however, appears from the judgments of the Privy Council in Rahimbhoy Habibhoy v. Turner Syed Muzhar Husein v. Bodha Bibi and Ramchand Manjimal v. Goverdhandas Vishandas Ratanchand I.L.R. (1920) Cal. 918 22 Bom. L.R. 606 that an order comprising the decision of the High Court upon a cardinal issue in a suit, that issue being one that goes to the foundation of the suit, and one that can never, while that decision stands, be disputed again, is a final order for the purposes of appeal to His Majesty in Council, notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit. The cardinal point in the suit is distinguishable from a preliminary point, e. g., misjoinder, limitation. Res judicata, which excludes evidence of essential facts, and an order overruling the preliminary point renders remand necessary for determination of those essential facts. The order is final if it finally disposes of the rights of the parties.
4. This question has been discussed by the full bench of the Lahore High Court in Sultan Singh v. Murli Dhar I.L.R. (1924) Lah. 329 In that case the first Court dismissed the plaintiffs' suit on the ground that plaintiffs had no locus standi to sue. The High Court on appeal reversed this finding and remanded the case for decision on the merits. It was held that the order in that case to the effect that the plaintiffs had established their locus standi to bring the action, being purely a preliminary point and not dealing with the merits of the dispute, could not be considered as the principal matter in controversy within the meaning of the rule laid down by the Privy Council and was not, therefore, a 'final decree' within the meaning of Section 109 (a) of the Coda of Civil Procedure.
5. It is contended on behalf of the appellant that the point of limitation is a cardinal point with regard to the rights of the parties, and if the decision of the Privy Council be ultimately in favour of the appellant the suit will be decided on that point alone. There seems to be some conflict of view as to the test to be applied in deciding as to whether the order is a final order or an interlocutory order.
6. It is observed by Sir Shadi Lal C.J. in Sultan Singh v. Murli Dhar I.L.R. (1924) Lah. 329 as follows (p. 334) :-
According to one view, which appears to have been adopted by the Calcutta High Court, the test is whether the decision of the trial Court, if restored by the Privy Council, would put an end to the suit altogether. If this view is to prevail, almost every order of remand reversing the dismissal of a suit on a preliminary point would he appealable to the Privy Council. The other view is that no order can be treated as final unless it finally determines the rights of the parties.
7. The same view was expressed by Broadway J. at page 353 as follows:-.the datermining factor is not the effect on the suit a decision in favour of the applicant would have if the proposed appeal to the Privy Council were successful, but the immediate effect on the suit of the order sought to be appealed against.
8. In the present case the question of limitation was decided against the plaintiff by the lower Court. That finding was reversed by the High Court. The decision of the High Court does not put an end to the contentions of the parties, for it appears that a previous suit brought by the defendant abated and he has no right to bring another suit. Even if the plaintiff's suit for declaration was thrown out on the ground of limitation his remedy would be lost but his right would not be determined, and as I have observed in my judgment the conditions of things would come to an impasse if the rights of the parties are not determined. The litigation came to the High Court three times and it was decided that the real question between the parties is as to who is entitled to the property, and that right ought to be determined in these proceedings. It appears that the essential or the cardinal point in the case has not been touched, and much time is lost in litigating upon an issue which does not bear upon the rights of the parties. The order of the High Court that the suit is within time has not finally disposed of the suit and has resulted in a remand for determination of the cardinal points in the case.
9. There is also another difficulty in allowing the application under Section 109 (a) of the Civil Preccedure Code, as the previous decisions of this Court in Aben Sha Sabit Ali v. Cassirao Baba, Saheb Holkar I.L.R. (1882) Bom. 260 and Mahant Ishvargar Budghar v. Caudasama Amarsang I.L.R. (1884) Bom. 548 have taken a view against the contention of the applicant.
10. I think, therefore, that the decision of the High Court on the point of limitation remanding the suit for decision on the other essential or cardinal points in the case is not a final order but an interlocutory order against which no appeal lies under Section 109 (a), Civil Procedure Code.
11. But it is contended on behalf of the applicant that if he is not allowed to appeal he would be precluded from disputing the correctness of the decision of this Court under Section 105 (2) of the Civil Procedure Code. It has, however, been held in Ahmad Husain v. Gobind Krishna Narain I.L.R. (1911) All. 391 and Venkataranga Row v. Narasimha Rao I.L.R. (1913) Mad. 509 that the sub-section does not apply to appeals to His Majesty in Council. Even assuming that this view is not accepted, a person who is aggrieved by an order of remand is precluded under Section 105 (2) from disputing its correctness only if an appeal lies against the order. And if I am right in the conclusion that no appeal lies to the Privy Council under Section 109 (a) on the ground that the decision of the High/Court is not a 'final order' or a decree 'passed on appeal by the High Court, Section 105 (2) would have no application.
12. Another ground on which the applicant would not be precluded from disputing the correctness of the decision of this Court on the point of limitation is that the opponent, who has now contended that no appeal lies against the order of the High Court on the ground that it is not a final order, would be prevented by an equitable estoppel from contending before the Privy Council hereafter that the applicant in this case is precluded under Section 105 (2) from disputing the correctness of the decision of this Court on the point of limitation. I think, therefore, that the application does not lie under Section 109 (a), Civil Procedure Code.
13. The next question is whether the application being treated as an application under Section 109 (c) should be allowed. Section 109 (c) requires that the case must be certified to be a fit one for appeal to His Majesty in Council. These words have been interpreted by their Lordships of the Privy Council in Banarsi Parshad v. Kashi Krishna Narain (1900) L.R. 28 1. A. 11 3 Bom. L.R. 154 where it has been observed that Clause (c) has been clearly intended to meet special cases-such, for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance. A similar view is also emphasised in Radhakrishna Ayyar v. Swaminatha Ayyur
14. It is difficult to hold that the point of limitation in this case answers the test laid down by their Lordships of the Privy Council.
15. The application is rejected and the rule is discharged with costs.
16. I agree and have nothing to add.