Skip to content


Meena Ram Vs. Amolak Ram - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 6 of 1968
Judge
Reported in5(1969)DLT100
ActsConstitution of India - Article 133(1)
AppellantMeena Ram
RespondentAmolak Ram
Advocates: Ramji Das,; Hem Chand,; S. Malhtora and;
Cases ReferredIn Mulugu Raghavacharyulu v. Mulugu Sri Venkat Ramanuja Charyulu
Excerpt:
family - partition - article 133 (1) of constitution of india and code of civil procedure, 1908 - appellants application under article 133 against order passed by division bench - division bench set aside decree and case remanded to trial court - court has nto passed any judgment ,decree or order in suit - order is nto final within meaning of article 133 if after order civil proceedings still remain to be tried and rights in dispute between parties have to be determined- word 'judgment' in article 133 is used in sense of decree or order and nto in sense in which it is used in code of 1908 - application incompetent and liable to be dismissed. - - (6) the ratio of the above mentioned cases clearly applies to the application before us......and sons v. state of uttar pradesh where it was held that:- 'anorder is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. if after the 'order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is nto a final order within the meaning of article 133.' the provision of the constitution invoked in that case was article 133 of the constitution but the observations would also apply with full force to article 133 of the constitution. their lordships while dealing with the question of finality of the order referred to a decision of the privy council in v.m. abdul rahman v. d .k. cassim & sons and approved the following observations of sir george lowndes:-.....
Judgment:

Hardayal Hardy, J.

(1) This application under Article 133 of the Constitution arises oat of an order made by a Division Bench of this Court in a first appeal from decree whereby the preliminary decree passed by the trial Court in favor of the present applicant was set aside and the case was remanded to the trial Court for fresh decision on some of the issues which according to the learned Judges hearing the appeal had nto been correctly decided by it. While remanding the case the learned Judges observed that it would be open to the trial Court to construe the pleadings for the purpose of determining the pleas raised by the respective parties or to allow any amendment in the pleadings if prayed for or to take fresh evidence.

(2) The applicant who was plaintiff in the suit had come to Court on the allegations that his father Sadh Ram had died in the year 1932 leaving behind three sons, namely, Amolak Ram (defendant No. 1), Mina Ram plaintiff) and Mtoi Ram who was their step-brtoher. Sadh Ram left certain properties which devolved on the three brtohers. The plaintiff alleged that on the death of their father Sadh Ram there was a partial partition in the family where under Mtoi Ram the step-brtoher separated but he and Amolak Ram continued to remain joint. He further claimed that the various properties set out in the plaint belonged to the joint family consisting of him selft and his brtoher Amolak Ram, that all acquisitions were made with the nucleus provided by the joint family funds and with the aid of income derived from the joint family properties and that thereforee all those properties belonged to the joint family. Although that was principally the case set up by the plaintiff, at the stage of arguments in appeal learned counsel appearing for the plaintiff submitted tliat in the plaint there was a clear averment about certain properties belonging to the plaintiff and Amolak Ram as coowners but the trial Court had nto gone into that question as it had accepted the plaintiff's case that the entire property was joint family property. Learned Judges came to the conclusion that there was a disruption of the joint family in 1933 and a complete partition between the three brtohers. But since the alternative case from the plaintiff and Amolak Ram being co-owners of the properties had nto been gone into by the trial Court the learned Judges allowed the appeal, set aside the judgment and decree of the trial Court and sent the case back for fresh decision on issues 5,6,7 and 8 which appeard to them to have been wrongly decided.

(3) The plaintiff submits that the order which he characterizes as a final judgment reverses the decision of the Court below and the value of the subject-matter of dispute in the Court of first instance and still in dispute in appeal was and is nto less than twenty thousand rupees, he is entitled to appeal to the Supreme Court as of right under Article 133 of the Constitution. He also submits that the case involves important question of law.

(4) The application is opposed on behalf of the respondents on the ground that so far this Court has nto passed any judgment, decree or final order in the suit. All that has happened is that after deciding some questions between the parties the case has been sent back to the trial Court for a fresh decision on the alternative case set up by the plaintiff himself and for decision on some of the issues which according to the learned Judges appeared to have been wrongly decided by the trial Court. Reliance has been placed by the learned counsel for the respondent on a. judgment of the Supreme Court in M/s. Jethanand and Sons v. State of Uttar Pradesh where it was held that:-

'ANorder is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the 'order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is nto a final order within the meaning of Article 133.'

The provision of the Constitution invoked in that case was Article 133 of the Constitution but the observations would also apply with full force to Article 133 of the Constitution. Their Lordships while dealing with the question of finality of the order referred to a decision of the Privy Council in V.M. Abdul Rahman v. D .K. Cassim & Sons and approved the following observations of Sir George Lowndes:-

'THEfinality must be a finality in relation to the suit. If, after the order, the suit-if still a live suit in which the rights of the parties have still to be determined, no appeal lies, against it under S. 109 of the Code.'

3. As regards further observations in that judgment that in a proper case it was always opn to the appellate Court to give a special certificat under Section 109 their Lordships of the Supreme Court went on to add that:-

'Acertificat' of fitness cannto be granted against such order even under S. 109 Civil P.C. S. 109 of the Code is now made expressly subject to Ch. Iv, Part V of the Constitution and Art. 133 which occurs in that chapter authorises the grant of a certificate 'by the High Court only if the order is a final order. The inconsistency between S. 109, Civil Procedure Code and Art, 133 of the Constitution has now been removed by the Code of Civil Procedure (Amendment) Act 66 of 1955. But even before the amending Act, the power under S. 109 being expressly made subject to the Constitution, an appeal lay to this Court only against judgments, decrees and final orders.'

(5) The question of finality was again considered by the Supreme Court in Mohan Lal Magan Lal Thakkar v. State of Gujarat where the decision of the Privy Council in V. M. Abdul Rahman v. D. K. Cassim and Sons appears to have been expressly approved by their Lordships. In that connection two decisions of the Federal Court Kuppuswami Rao v. The King and Mohammad Amin Brtohers Ltd. v. Dominion of India and two earlier decisions of the Supreme Court Sardar Svedna Taker Saifuddin Saheb v. State of Bombay and Jethanand and Sons v. State of Uttar Pradesh were also referred to in that case.

(6) The ratio of the above mentioned cases clearly applies to the application before us. As against the cases cited by the learned counsel for the respondents learned counsel for the appellant has referred us to a judgment of the Supreme Court in Asrumati Devi v. Kumar Rupendra Deb Rajkto where the meaning of the word 'judgment' in clauses 12, 13 and 15 of the Calcutta High Court was considered by their Lordships and on the strength of that judgment he has argued that the words used in Article 133 of the Constitution are judgment decree and final order and as such although the order passed by the learned Judges of the Division Bench may nto amount to a decree or a final order it certainly amounts to a judgment. It appears to us that the argument is wholy misconceived. As has been held by the Division Bench of Bombay High Court in Jamnadas Prabhudas, Bombay v. Commissioner of Income-tax, Bombay City that:-

'THEexpression 'judgment, decree or final order' used in Art, 133(1) of the Constitution is used in its technical English sense, which means a final declaration or determination of the rights of parties and it also means a decision given on merits. 'Judgment, decree or final order' is a compendious expression and each one of the parts of this expression bear the same conntoation, viz., that there is an adjudication by the Court upon the rights of the parties who appear before it, 'Judgment' must nto be read in this context in contradistinction to 'decree or final order.'

The same meaning was given to this expression by the Calcutta High Court in West Jamuria Coal Co., v. Bholanath Roy' where it was observed that -

'The word 'Judgment' was nto intended to bring in orders, nto final. The orders which 'do nto terminate the suit or proceeding are nto within the contemplation of that Article.'

In this case an application for leave to appeal against the order of remand passed in a second appeal had been filed. The history of the provisions of the Code of Civil Procedure dealing with the right of a party to go up in appeal to the Privy Council was fully considered in this case and it was observed that :-

'UNDERCls. (a) and (b) of S 595, Civil Procedure Code, 1882 an appeal lav to the Privy Council from 'any final decree' if the High Court certified the case to be a fit one for appeal. The decree appealble under each of the three clauses were separately described and in the case of those appealable under Cl. (c), no qualifying word was used. By S. 594, 'decree' was defined as including 'judgment and decree'. The effect of those severalprovisions was that under cls. (a) and (b) of S.595, an appeal lay from any final decree, final Judgment or final order, but in order to be appealable under cl. (c), a decree or judgment or order was nto required to be final.

(7) The Code of 1908 maintained the method of giving description of the appealable order in each clause and also the difference between the first two clauses and the third. Under Cls. (a) and (b) of S. 109 of that Code, an appeal lay from 'any decree or final order', while under Cl. (c), an appeal lay from 'any decree or order' provided the High Court certified the fitness of the case for appeal. The decree or order was nto required to be final.

(8) Under Article 133 of the Constitution has adopted a new description of appealable decrees and orders and a new method of applying it to the three clauses. The difference which is material is that for decrees or orders appealable under all the three clauses, a common expression, 'judgment, decree or final order', has been used and it has been placed at the begining of the Article so as to govern all the clauses. The distinction which marked Cl. (c) in this regard under the codes of 1882 and 1908 has thus been removed. In order to be appealable under any of the clauses of Art. 133, the decision must be a 'judgment, decree or final order' and nto any the less so under Cl. (c).'

(9) In Basudevanand v. Raghubir Saran Rastogi the executing Court had allowed an objection that the execution proceedings could no longer proceed in view of Section 4(d), Bihar Land Reforms Act and accordingly ordered the proceedings to be dropped. The High Court in appeal set aside the order of the executing Court on the ground that the objection was nto valid and was also concluded by rest judicata. An application for a certificate under Article 133 of the Constitution was thereupon made by the judgment-debtor on the ground that the case fulfillled the requirements of the said Article and was toherwise a fit case for appeal to the Supreme Court. The application was dismissed and it was held that the order of the High Court was neither a judgment nor a final order within the meaning of Article 133 of the Constitution. A vital issue was no doubt determined by the High Court but the decision of the high Court did nto finally determine the rights of the parties in the execution proceedings. Although there was no specific order of remand made by the High Court, the effect of the decision was to keep alive the execution proceedings because the order dropping the execution proceedings was set aside. In Mulugu Raghavacharyulu v. Mulugu Sri Venkat Ramanuja Charyulu, the plaintiff had alleged in a suit that he had been taken in adoption by the defendants and that as adopted son he was entitled to a half share in the family properties. At the hearing of the suit, certain issues were tried as preliminary issues. One of those issues related to limitation. The Subordinate Judge held in favor of the plaintiff on the question of limitation but he held that the plaintiff had nto proved the adoption set up by him. On that he dismissed the suit. The High Court in appeal held differing from the Subordinate Judge, that the plaintiff had established his adoption. Agreeing with the Subordinate Judge on the question of limitation, it remanded the case for trial of the toher issues. An application for leave to appeal to the Supreme Court was thereupon filed by the defendants against the aforesaid decision of the High Court. In dismissing the application it was held that the truth of the adoption was nto the question in controversy between the parties. There were toher and substantial questions on which the parties were at issue. Unless those issues were determined there could nto be a final adjudication of the points in dispute in the suit. No doubt the issue as to adoption was an important one and by reason of the High Court's finding on that issue, one obstacle to the plaintiff obtaining a decree was removed. But before he could obtain a preliminary decree for partition, toher issues had also to be determined. thereforee, the judgment of the High Court was interlocutory in character and nto final.

(10) It was further held that the word 'judgment' in Article 133 is used in the sense of a decree or order and nto in the sense in which it is used in the Civil Procedure Code. In this connection the learned Judges (Raj amannar C. J. and Venkatarama Aiyer J) particularly referred to the following observations of Mukherjea J. in Mohammad Amin Brtohers Ltd., v. The Dominion of India' :-

'LASTLYit was urged by Mr. Setalvad, though somewhat faintly, that even if the order appealed against is nto a final one, it could still be regarded as a judgment, and as such would come within the purview of S. 205(1) of the Government of India Act. In English Courts, the word 'Judgment' is used in the same sense as a decree in the Civil Procedure Code and it means the declaration or final determination of the rights of the parties in the matter brought before the Court : Vide '. According to 'definition given in the Civil Procedure Code a judgment is the statement of reasons given by a Judge on which a decree or order is based. If the order which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutory judgment, and the collocation of the words 'judgment, decree or final order' in section 205(1) of the Government of India Act makes it clear that no appeal is provided for against an interlocutory judgment or order.'

(11) We accordingly hold .that this application is incompetent and is thereforee dismissed with costs. Counsel's fee Rs. 100.00.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //