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Shriniwas Laxmipatirao and ors. Vs. Hanmant Shriniwas Deshpande and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom39; 79Ind.Cas.210
AppellantShriniwas Laxmipatirao and ors.
RespondentHanmant Shriniwas Deshpande and anr.
Excerpt:
civil procedure code (act v of 1908) section 109 (a) - betters patent (bom.) clause 39)--order remanding case for fresh decision, whether final order--leave to appeal to privy council, whether can be granted. - - the substantial portion of the order which the applicants complain of in their petition for leave to appeal to his majesty in council was really passed on the civil extraordinary application which we have already mentioned......referred to 'seems to be insuperable. the order of this court cannot be said to be a final order passed on appeal. the substantial portion of the order which the applicants complain of in their petition for leave to appeal to his majesty in council was really passed on the civil extraordinary application which we have already mentioned. further, it cannot be said that this is a final order within the meaning of section 109 (a) or that it is a final judgment within the meaning of section 39 of the letters patent, as it does not finally dispose of the rights of the parties. the matter has been delayed beyond all reasonable limits already; and the suit of 1911 is still practically at the stage where it was when it was filed. in view of these facts and of the nature of the order, we.....
Judgment:

1. It is unfortunate that the hearing of this Rule has been delayed so long as the notice could not be served. The order of this Court was passed on the 12th August 1919 on Appeal No. 41 of 1917 and Civil Extraordinary Application No. 333 of 1917. The circumstances under which the decree of the Trial Court was set aside and the case sent back to the Trial Court for passing a fresh decree are stated in the judgment of this Court. Apart from the difficulty in the way of the applicants in getting a certificate under Section 110, arising out of the terms of Section 109 (a), we do not think that, under the special circumstances of this case, it would be right to grant the certificate applied for. But the difficulty which we have referred to 'seems to be insuperable. The order of this Court cannot be said to be a final order passed on appeal. The substantial portion of the order which the applicants complain of in their petition for leave to appeal to His Majesty in Council was really passed on the Civil Extraordinary application which we have already mentioned. Further, it cannot be said that this is a final order within the meaning of Section 109 (a) or that it is a final judgment within the meaning of Section 39 of the Letters Patent, as it does not finally dispose of the rights of the parties. The matter has been delayed beyond all reasonable limits already; and the suit of 1911 is still practically at the stage where it was when it was filed. In view of these facts and of the nature of the order, we discharge this Rule. While doing so, we express a hope that the parties and the Court will see to it that the suit is heard and finished without any further appreciable delay.


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