1. This petition for leave to appeal to the Supreme Court has been filed by the decree-holder in O.S. No. 84 of 1956 on the file of the Subordinate Judge of Madurai, a suit instituted by him against the respondents one of whom was a minor at the time of (he passing of (he decree. In pursuance of the decree, he brought the suit property for sale in E.P. No. 31 of 1960 and himself purchased it for Rs. 13,000. The first respondent in this petition who was a minor at the time of the proceedings sought to set aside the sale on the ground that though he had become a major by 26th June, 1961 no notice was taken to him and also on the. ground that several material irregularities had crept into the conduct of the sale on account of the fraud of the decree-holder which resulted in heavy loss to the minor in that the valuable property worth Rs. 60,000 was sold for Rs. 13,000. When this application out of which these proceedings arise, came before the learned Subordinate Judge, he declined to set aside the sale, as he was of opinion that the absence of notice of sale to the quondam minor would not render the sale illegal. He also found that the other objection namely that the intending bidders were prevented at the auction was not substantiated. The application of the judgment-debtor was therefore dismissed. Thereupon, the first respondent in the petition filed C.M.A. No. 280 of 1962 which came up for final disposal before a Division Bench to which one of us was a party. This Court then observed that the absence of notice of the sale to the appellant therein was certainly a material irregularity, that the question was whether by reason of that irregularity, substantial loss had been occasioned to the judgment-debtor and that there was no proper finding on that question by the learned Subordinate Judge. The petition to set aside the sale was therefore remitted back to Subordinate Judge for fresh enquiry and disposal. Now it is against that order, the decree-holder has filed the present petition for grant of leave to appeal to the Supreme Court.
2. Learned Counsel for the petitioner has contended that the value of the property would be more than Rs. 20,000 and that the proposed appeal to the Supreme Court involves a substantial question of law.
3. In the counter-affidavit filed on behalf of the respondents, it is submitted that the petition is not maintainable, as the order to be appealed against is not a final order and that the rights of the parties have not been finally disposed of by the order of remand.
4. The only question for consideration, therefore, is whether the petitioner is entitled to a certificate for appeal to the Supreme Court, at this stage. As already stated, the petition to set aside the sale has been remanded to the lower Court, for the purpose of finding out whether the property was sold for a low price, and whether by reason of that irregularity substantial loss has been occasioned to the judgment-debtor. The learned Subordinate Judge will have to hold an enquiry and dispose of the matter. Learned Counsel for the petitioner would contend that the observations of the learned Judges of this Court that the absence of notice of sale to the judgment-debtor was a material irregularity are final and that he would not have an opportunity to canvass that point. According to learned Counsel the substantial question of law that he would like to canvass before the Supreme Court would be that execution proceedings taken against a person who was a minor through his guardian would be valid, even though notice had not been sent directly to the minor after attaining majority, provided notice in the execution proceedings was served properly on the guardian.
5. We are not convinced with this argument, because we are of the opinion that the observations of this Court in the appeal would not entirely dispose of the matter finally between the parties. This brings us to the question whether the order of remand passed by this Court in the appeal is a judgment or final order within the meaning of Article 133 of the Constitution of India. It is useful to refer to the observations of White, C.J. in Tuljaram Row v. Alagappa Chettiar 21 M.L.J. 1 : I.L.R.Mad. 1 :
The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding as far as Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment...
6. In Jathanand & Sons v. State of U.P. : 3SCR754 , the High Court at Allahabad merely remanded the cases for retrial holding that there was no proper trial of the petitions. Their Lordships of the Supreme Court held that such an order remanding the cases for retrial was not a final order within the meaning of Article 133(1)(c) and that if, after the order, the civil proceeding still remained to be tried and the- rights and disputes between the parties had to be determined, the order was not a final order within the meaning of Article 133. In Southern Railways v. Veeraswami Nadar : (1964)1MLJ25 at 29, Ramachandra Iyer, C.J., observed that the proper test to ascertain whether a judicial order was a 'judgment' was to see whether in regard to matters in controversy in the Court which rendered the judgment, there had been a completeness of adjudication.
7. On a review of the case-law on the subject, it seems to us that the order passed in the Civil Miscellaneous Appeal is not a final order, since the matter has not been finally disposed of between the parties and the matter has been remitted. to the Court below only for finding out whether the property was Sold for an inadequate price on account of the material irregularities which crept in the course of the execution proceedings. The petitioner is not, therefore, entitled to a certificate.
8. The petition is accordingly dismissed. There will be no order as to costs.