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Jhabar Mal Chokhani Vs. the Pujab Pictures Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H261
AppellantJhabar Mal Chokhani
RespondentThe Pujab Pictures Ltd.
Cases ReferredAbdul Rahman v. D.K. Kassim
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - this case appears to be analogous to the present case and i am of opinion that the principles enunciated therein must apply to the present case because the order appointing or refusing to..........in council unless the 'judgment, decree or order' in question is final. i have already shown that an order refusing to appoint a provisional liquidator is not final. in the result, i would dismiss the application with costs.khosla, j.6. the only point that arises in this case is whether the order from which an appeal is sought to be made is a final order within the meaning of section 109, civil p.c. it has been held in several cases that an order is final if it finally disposes of the rights of the parties. sir george lowndes in abdul rahman v. d.k. kassim & sons a.i.r. 1933 p.c. 88 observed:the finality must be a finality in relation to the suit. if, after the order, the suit is still a live suit in which the rights of ihe parties have still to be determined, no appeal lies against it.....
Judgment:

Teja Singh, J.

1. This is an application for permission for leave to appeal to His Majesty in Council or the Federal Court against an order of this Bench whereby we set aside the order of a learned Single Judge of this Court appointing a provisional liquidator. The counsel for the applicant contends that the case falls within the purview of Clauses (a) and (b) of Section 109 and since the order of the learned Single Judge was set aside by us on appeal he is entitled to permission as a matter of right. I am of opinion that if at all permission can be granted under Clause (b) because our order arises out of proceedings pending on the original side. This however would not make any difference because the words used in both the clauses are 'decree or final order' and what has to be decided is whether our order can be regarded as a final order. It was argued by applicant's counsel that any order which decides finally any of the matters agitated by the parties before the Court is a final order within the meaning of Clauses (a) and (b) but he has not been able to support his contention by any authority. On the other hand, there are a large number of cases in which it has been held that an order, in order to be final for purposes of appeal to the Privy Council, must be one deciding finally any question at issue in the cause or of the rights of any of the parties. The present applicant had made an application for liquidation of the respondent company and it was in the course of the liquidation proceedings that he applied for the appointment of a provisional liquidator. I cannot understand how the appointment of a provisional liquidator can be regarded as an issue in the ease. It may be that the decision of the question whether or not a provisional liquidator should be appointed will have an effect upon the liquidation proceedings, but the order appointing or refusing to appoint a provisional liquidator does not decide the rights of the parties.

2. In Chundi Datt Jha v. Pudamanand Singh Bahadur and Ors. 22 Cal. 928, permission was sought for an appeal to Her Majesty in Council against an order refusing the appointment of a Receiver in a suit. It was held that such an order did not finally decide any matter which was directly at issue in the case in respect of the rights of the parties, and was not final within the meaning of Clauses (a) and (b) of Section 595, Civil P.C., (which corresponds to Section 109 of the present Code) and Section 39, Letters Patent. Consequently, the leave was refused. This case appears to be analogous to the present case and I am of opinion that the principles enunciated therein must apply to the present case because the order appointing or refusing to appoint a Receiver as well as an order appointing or refusing to appoint a provisional liquidator are interlocutory orders.

3. The other case in point is Bajniti Prasad Singh and Ors. v. Nrisingha Charan : AIR1933Pat293 . The appeal arose out of a mortgage suit. On the plaintiff's application, the Subordinate Judge made an order for the appointment of an interim Receiver. On appeal, the High Court set aside the Subordinate Judge's order and the plaintiff then presented an application for leave to appeal to His Majesty in Council against the decision of the High Court. While refusing the application it was held by the learned Judges that an order refusing the appointment of a Receiver was not a final order and there was no appeal from it to the Privy Council, inasmuch as such an order did not finally decide any matter which was directly at issue in the case in respect of the rights of the parties.

4. In Benoy Krishna Mukherjee and Ors. v. Satish Chandra Giri and Ors. A.I.R. 1928 P.C. 49, the High Court had granted permission for appeal to the Privy Council against their order discharging so much of the order of the lower Court as related to the appointment of a Receiver. Their Lordships made the following observations regarding the permission:

Their Lordships remark that it was with some doubt in the mind of at least one of the Judges of the High Court that leave to appeal to His Majesty in Council was given in this ease, and they think it right to add that, as a general rule and in the absence of special circumstances or some unusual occasion for its exercise the power of making interlocutory orders is one which is not a suitable subject for review by the Judicial Committee.

5. The applicant's counsel also contended that Clause 29, Letters Patent, applied and he had a right to prefer an appeal to the Privy Council from our order under that clause. In support of his contention, he referred us to a Pull Bench decision of the Lahore High Court reported as Administrator, Lahore Municipality v. Lala Bakhshi Ram A.I.R. 1942 Lah. 169. The facts of that case and the point referred to the Full Bench were entirely different and I cannot understand what bearing that ruling has upon the present case. Apart from this, it may be pointed out that Clause 29 also talks of 'final judgment, decree or order' and no appeal is competent to His Majesty in Council unless the 'judgment, decree or order' in question is final. I have already shown that an order refusing to appoint a provisional liquidator is not final. In the result, I would dismiss the application with costs.

Khosla, J.

6. The only point that arises in this case is whether the order from which an appeal is sought to be made is a final order within the meaning of Section 109, Civil P.C. It has been held in several cases that an order is final if it finally disposes of the rights of the parties. Sir George Lowndes in Abdul Rahman v. D.K. Kassim & Sons A.I.R. 1933 P.C. 88 observed:

The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of ihe parties have still to be determined, no appeal lies against it under Section 109(a).

The order setting aside the appointment of a Liquidator cannot by any stretch of meaning be said to be a final order in this sense. The leave to appeal, therefore, must be declined, and' I agree that this application must be dismissed with costs.


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