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Baijnath Dass and ors. Vs. Sohan Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.967
AppellantBaijnath Dass and ors.
RespondentSohan Bibi
Excerpt:
.....order--appeal to privy council--practice. - - in our opinion the present case is clearly distinguished from the one just cited. one of these points is the question whether or not after his adoption parsotam das relinquished all his rights under a receipt dated the 29th march, 1881. if it is found that he did relinquish his rights, then the suit brought by musammat sohan bibi must fail quite as much as if the finding had been that parsotam das had never been legally adopted by musammat manki bahu. 'i conceive that an order is final only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. on the other hand, if we grant this application it may well be that the litigation will be..........of february, 1909, a division bench of this court after hearing an appeal presented by musammat sohan bibi against musammat hiran bibi and others, allowed the appeal, set aside the decree of the court below and remanded the case to that court with directions to reinstate it under its original number in the register and dispose of it according to law. we are informed that the court below has fixed the 11th of july and intends to proceed to try the case remanded on that date. on the 8th of may the defendants who were respondents to the appeal in this court put in a petition for leave to appeal to his majesty the king in council as an appeal from a judgment and decree of this court. upon notice going to the other side to show cause why leave should not be granted, musammat sohan bibi has.....
Judgment:

1. On the 12th of February, 1909, a Division Bench of this Court after hearing an appeal presented by Musammat Sohan Bibi against Musammat Hiran Bibi and others, allowed the appeal, set aside the decree of the Court below and remanded the case to that Court with directions to reinstate it under its original number in the register and dispose of it according to law. We are informed that the Court below has fixed the 11th of July and intends to proceed to try the case remanded on that date. On the 8th of May the defendants who were respondents to the appeal in this Court put in a petition for leave to appeal to His Majesty the King in Council as an appeal from a judgment and decree of this Court. Upon notice going to the other side to show cause why leave should not be granted, Musammat Sohan Bibi has appeared to show cause. Her contention is that the order of this Court, dated the 12th February, 1909, is an interlocutory order and that the application for leave to appeal is premature. Before going further, a brief statement of the case will be useful. The suit out of which the appeal to this Court arose was a suit brought by Musammat Sohan Bibi for a declaration that a transfer of certain property effected by a compromise and a decree be declared to be null and void, so far as she herself is concerned, upon the death of Musammat Manki Bahu the widow of one Babu Haris Chander.

2. The Court of first instance found, and this Court has confirmed the finding, that Babu Parsotam Das, father of Musammat Sohan Bibi was adopted by Musammat Manki Bahu after the death of her husband Babu Haris Chander and in pursuance of an authority from him. Manki Bahu entered into a compromise with regard to a suit brought against her and by that compromise transferred certain property. A decree was passed upon the compromise and it is this compromise and decree and the transfer effected thereby that Musammat Sohan Bibi, as daughter of Babu Parsotam Das and as immediate reversioner asked the Court to declare null and void., The Court of first instance while holding the adoption proved, held that the suit was time-barred and that Musammat Sohan Bibi was bound by the compromise. This Court in appeal while affirming the adoption as already pointed out differed from the Court below both on the question of limitation and the question of Musammat Sohan Bibi's right to maintain the suit. The value of the property is admittedly over ten thousand rupees. We agree with the learned Counsel for Musammat Sohan Bibi that the order of this Court, dated the 12th February, 1909, cannot be held to be a decree in the strict sense of the term and that it is an order. The definition of 'decree' given in Section 2 of Act V of 1908 excludes in express terms from the category of decrees any adjudication from which an appeal lies as an appeal from an order, and Order 43 Rule 1, Clause (u) provides that an appeal lies from order under Rule 23 of Order 41 remanding a case where an appeal would lie from a decree of an appellate Court. The order of the 12th of February, 1909, is an order of this kind and there is no provision made for appeals to His Majesty in Council from any order (See Section 109 and Order 45). On behalf of the petitioners it is contended that this order is a final order inasmuch as the judgment of this Court which led up to the order decides the cardinal point in the case and the points now remaining for decision are all subsidiary points. In support of this contention the learned Advocate relied upon the case of Saiyid Mazhar Hossein v. Musammat Bodha Bibi 17 A. 112 (P.C.) : 22 I.A. 1 That was. a casein which this Court had refused leave to appeal and the petitioner applied to Her Majesty in Council and leave was granted. Their Lordships pointed out that the case before them as put by the plaintiff was that one Ibin Ali had given the property in suit to certain persons who conveyed it to the plaintiff. One of the defences raised was misjoinder, which was overruled, but the next went to the foundation of the plaintiffs' claim being a denial that Ibn Ali made any valid gift to the grantors of the plaintiff. The other defences were all of a subordinate character. The Court of first, instance decided against the plaintiff on the question of Ibn Ali's Will and did not give judgment on other issues. The plaintiff appealed from the decree and this Court decided that Ibn Ali made a valid gift and remanded the case to be disposed of on the other issues. Their Lordships of the Privy Council held that the Will of Ibn Ali was the cardinal point in the suit and after the decision of the High Court that could not be disputed again and in consequence held the order to be a final order. In our opinion the present case is clearly distinguished from the one just cited. In the case before us the question of the adoption of Parsotam Das, whether it was valid or not, can hardly be called the cardinal point in the case. Other points have been taken which affect the eventual decision quite as much as the question of adoption. One of these points is the question whether or not after his adoption Parsotam Das relinquished all his rights under a receipt dated the 29th March, 1881. If it is found that he did relinquish his rights, then the suit brought by Musammat Sohan Bibi must fail quite as much as if the finding had been that Parsotam Das had never been legally adopted by Musammat Manki Bahu. The result is that the case as it now stands is still an open case and it can nowise be held that it has been so far decided that the matter cannot be made subject to further appeal. In the grounds maintained in the application for leave to appeal the order quoad order has not been attacked. It is nowhere said that this Court should have passed an order of a different kind or that it had no jurisdiction for any reason to make the order as it did and so forth. It is not the formal order which is attacked. The object of the attack is the judgment leading up to the order and the matters contained in that judgment, if open to appeal now, will still be open to appeal when this Court, again called upon to do so, hears an appeal from the case n>s it will eventually stand decided by the Court below in obedience to its order of remand. It is worth noting in connection with this matter that, while Act XIV of 1882 defined the word 'decree' as used in Chapter XLV as including judgment and order, no such definition is to be found either in Sections 109 to 112 or in Order 45 of Act V of 1908. There is no definition given of the term final order 'in the Code and it is evident from what their Lordships said in Saiyid Mazhar Hussain v. Musammat Bodha Bibi 17 A. 112 (P.C.) : 22 I.A. 1 that it is not always an easy matter to distinguish between what is a final and what is an interlocutory order. In Standard Discount Co. v. La Grange (1877) L.R. 3 C.P.D. 07 Brett, L.J. pointed out that, 'no order, judgment or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant and if it is given for the defendant it is conclusive against the plaintiff.' Similarly in Salaman v. Warner (1891) 1 Q.B. D.734; Fry, L.J. observed: 'I conceive that an order is final only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I-think that an order is interlocutory where it cannot be affirmed that in either event the action will be determined.' So far as the present case is gone the order of this Court determines only a part of the case and leaves other matters still to be determined. Over and above that if we could sanction the present application we think it will be very inexpedient. The case is now ready for hearing and in the ordinary course of things will in a few days be heard and determined by the Court below. The appeal to this Court would follow after a short lapse of time and the whole case will be determined either for the plaintiff or the defendant, so far as the Courts in this country can determine it. The probability is that the litigation, if it must go further, can proceed to His Majesty in Council ready and ripe for a hearing on every point at no very distant date. On the other hand, if we grant this application it may well be that the litigation will be prolonged over a series of years. On every ground, therefore, we dismiss this application with costs, including in this Court, fees on the higher scale.


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