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National Security Assurance Co. Ltd. Vs. Mahal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.O. No. 58-D of 1958
Judge
Reported inAIR1960P& H406
ActsDisplaced Persons (Debts Adjustment) Act, 1951 - Sections 18(2); Code of Civil Procedure (CPC), 1908; Government of India Act, 1935 - Sections 205(1)
AppellantNational Security Assurance Co. Ltd.
RespondentMahal Singh and ors.
Cases ReferredAbdul Rahman v. D. K. Cassim and Sons
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........appeals and says: 'save as otherwise provided in s. 41, an appeal shall lie from-- (a) any final decree or order of the tribunal, or(b) any order made in the course of execution of any decree or order of the tribunal, which if passed in the course of execution of a decree or order of a civil court would be appealable under the code of civil procedure, 1908 (act v of 1908) to the high court within the limits of whose jurisdiction the tribunal is situate.' according to s. 41, where the subject-matter of the appeal relates to the amount of a debt and such amount on appeal is less than rupees five thousand, no appeal would be competent.(3) the application in the present case was presented by a displaced person under s. 18 of the act for recovery of rs. 36,000/- in respect of the loss.....
Judgment:

(1) This is an appeal against an order made by the Tribunal under sub-s. (2) of S. 18 of the Displaced Persons (Debts Adjustment) Act, 1951, (LXX of 1951 and hereinafter to be referred as the Act.)

(2) A preliminary objection is raised on behalf of the respondent that the appeal is not competent. Section 18(2) of the Act reads:

'Where a loss has been incurred in respect of any property in the circumstances specified in sub-section (1), the Tribunal shall, in every proceeding where it is necessary to do so, determine respectively the amount of the loss, the amount for which the property was insured on the date of such loss, and the amount, if any, paid by the insurance Company, and shall make a report thereof to such board or other authority as may be prescribed, and the prescribed board or other authority shall, after taking into account such matters as may be prescribed as being relevant thereto, and subject to any rules made in this behalf, in turn propose to the Tribunal the amount for which the claim against the insurance Company shall be decreed and the Tribunal shall pass a decree accordingly.' Section 40 of the Act lays down the provision regarding appeals and says:

'Save as otherwise provided in S. 41, an appeal shall lie from--

(a) any final decree or order of the Tribunal, or

(b) any order made in the course of execution of any decree or order of the Tribunal, which if passed in the course of execution of a decree or order of a civil Court would be appealable under the code of Civil Procedure, 1908 (Act V of 1908) to the High Court within the limits of whose jurisdiction the Tribunal is situate.'

According to S. 41, where the subject-matter of the appeal relates to the amount of a debt and such amount on appeal is less than rupees five thousand, no appeal would be competent.

(3) The application in the present case was presented by a displaced person under S. 18 of the Act for recovery of Rs. 36,000/- in respect of the loss of the insured goods. The Tribunal after going into the points raised by the parties arrived at the conclusion (I) the insured goods of the value of Rs. 33,724/8/- were lost in riots, (ii) that the goods were insured for Rs. 36,000/- on the date of the loss and (iii) that the insurance company had not paid any amount to the claimant. The Tribunal accordingly submitted a report to the Board constituted by the Central Government saying that the petitioner was entitled to a decree for Rs. 33,724/8/- with proportionate costs against the respondent company. It is against this order of the Tribunal dated 8-11-1957, that the present appeal is preferred by the company.

(4) Rules under sub-s. (2) of S. 18 of the Act have been framed and they are entitled 'The Insurance Claims Board Rules, 1952.' Rule 4 of these Rules enumerates the matters which the Board is to take into consideration, on receipt of the report from the Tribunal, for the purpose of making its proposal to the Tribunal. Rule 5 further provides that the Board shall, after taking into account the matters specified in Rule 4 and any other matter which, in its opinion, is relevant for the purpose, propose to the Tribunal the amount for which, in its opinion, it is equitable to pass a decree against the insurance Company, the only limitation being that the amount proposed by the Board shall not exceed the value of the property insured. The Tribunal, on receipt of the proposal is to pass a decree in the amount proposed by the Board.

(5) The order under appeal certainly cannot be regarded as a decree. The question that then remains to be seen is whether it can be regarded as a 'final order'. In Kuppuswami Rajasthan v. The King, AIR 1949 FC 1 the words 'final order' used in section 205(1) of the Government of India Act, 1935, for imparting jurisdiction to the Federal Court to entertain appeals, were interpreted to mean 'an order which finally determines the points in dispute and brings the case to an end.' It was further observed that to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provides for its trial in the ordinary way.

In Mohammad Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77 the test for determining the finality of an order was stated to be 'whether the judgment or order finally disposed of the rifest of the parties. The finality must be a finality in relation to the suit. The fact that the order decides an important and even a vital issue is by itself not material unless the decision puts an end to the suit.' The same view was taken by their Lordships of the Privy Council in Abdul Rahman v. D. K. Cassim and Sons, AIR 1933 PC 58 while interpreting the words 'final order' appearing in section 109(a) of the Code of Civil Procedure.

(6) Mr. M. L. Bagai, learned counsel for the appellant, submits that the question of liability of the Company to pay the loss and the amount of loss determined by the Tribunal cannot be gone into by the Board and the Tribunal's decision is to be final. Even if that be so, I do not think the report of the Tribunal submitted to the Board under sub-s. (2) of Section 18 can be regarded as a final order, open to an appeal under section 40 of the Act. The order is in fact, and does not amount to anything more than, a report. The matter has yet to be considered by the Insurance Board and a decree, if any, is to follow on the case coming back to the Tribunal and on the basis of the proposal made by the Board.

(7) I would, therefore, accept the preliminary objection and hold that no appeal is competent. The appeal is dismissed, but the parties are left to bear their own costs.

(8) Appeal dismissed.


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