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Ambika Prasad Vs. Devi Dayal and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1932All318; 140Ind.Cas.110
AppellantAmbika Prasad
RespondentDevi Dayal and ors.
Excerpt:
- .....granting an application for 'review. in para. 11 of the petition it is averred that so far as the review application was concerned, the case had been finally decided and that paragraph goes on to say that the matter raises important and substantial points of law of general importance and that the case was a fit case for us to certify to his majesty in council.2. the learned counsel for the petitioner has submitted that the application was for a certificate under section 109(a) or in the alternative under section 109 (c), civil p.c. the valuation of the property involved in the case is over rs. 10,000. the learned counsel submits that section 109(a) provides that an appeal shall lie to his majesty from any decree or final order passed in appeal by a high court, and that so far as the.....
Judgment:

Banerji, J.

1. This is an application for leave to appeal to His Majesty in Council against an order of this Court granting an application for 'review. In para. 11 of the petition it is averred that so far as the review application was concerned, the case had been finally decided and that paragraph goes on to say that the matter raises important and substantial points of law of general importance and that the case was a fit case for us to certify to His Majesty in Council.

2. The learned Counsel for the petitioner has submitted that the application was for a certificate under Section 109(a) or in the alternative under Section 109 (c), Civil P.C. The valuation of the property involved in the case is over Rs. 10,000. The learned Counsel submits that Section 109(a) provides that an appeal shall lie to His Majesty from any decree or final order passed in appeal by a High Court, and that so far as the parties in this case are concerned the order granting a review has set aside a final decree and that this Court, having granted an application for review, has passed an order that is final between the parties. We have come to the conclusion that this contention of the learned Counsel cannot be accepted.' An order can only be called a final'' order if it finally disposes of the rights; of the parties. But granting of an application for review does not finally dispose of the dispute between the parties. Reference may be made to the case of Ramchand-Manji Lal v. Goverdhan Das Kishandas A.I.R. 1920 P.C. 86 where their Lordships of the Privy Council in a case where stay had been refused by the appellate Court, held that the order refusing stay was not such an order as would be appealable to their Lordships. It is unnecessary to refer to various other cases on the point.

3. The order passed by us granting a review really does not finally dispose of any case but reopens the decree that was passed originally by the Court and we therefore are of opinion that an order for. review is not a final order which is appenlable. We may also mention that Section 109(a) lays down that the final order which is appealable is a final order 'passed on appeal' and does not say that any order finally or otherwise passed in exercise of the appellate jurisdiction of the Court is appealable.

4. The next point which has been contended for by the appellants is that we should certify under the provisions of Clause (c), Section 109, Civil P.C., that this, case is a fit case for appeal to His Majesty.

5. It is contended that the principle upon which a Court should act in certifying in review matters is that where an appeal is permitted in the case of any other Court under Order 47, Rule 7, Civil P.C. as no appeal is provided for by the Code against an order of the High Court, there should be an appeal to His Majesty in Council.

6. It was argued that in this case, if an appeal was permissible under Order 47, Rule 7 the applicant could have objected that the application for review was barred by limitation and that this Court exercised its discretion wrongly in extending time to the applicants. Reliance is placed on the case of Jagmohan Singh v. Sheo-mangal Singh A.I.R. 1926 Oudh. 17. We have examined this case, and the reason that was given for rejecting that application was that even if it was a case in which an appeal was allowed the provisions of Order 47, Rule 7 did not give a right of appeal in that particular case. It is not possible to hold that this case is an authority for the proposition that when a right of appeal is given by Order 47, Rule 7 a case can be said to be a fit case for certification for appeal to His Majesty in Council. The learned Counsel strenuously contended that the exercise of discretion in this particular instance was wrong and if the, matter went up to their Lordships of the Privy Council, there would be an end to the litigation. The learned advocate for the respondent urges that even if leave is granted, in the event of their Lordships of the Privy Council agreeing to the view taken by us on the question of the exercise of discretion, the litigation will still continue. It can hardly be said that any substantial question of law has to be decided in the case. Moreover the admission of additional evidence is subject to the decision of the Court whether the document presented now was or was not admissible. Further there were a number of issues in the case which would have to be decided even if the Court held upon a consideration of the additional evidence now to be tendered that the plaintiff had a locus standi to sue. In these circumstances, we are of opinion that this case is not a fit case in which we should certify it to be appealable to His Majesty in Council. The application is dismissed with costs.


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