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Damra Coal Company Vs. Benares Bank - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal624,28Ind.Cas.569
AppellantDamra Coal Company
RespondentBenares Bank
Cases ReferredJbanarsi Prasad v. Kashi Krishna Narain
Excerpt:
civil procedure code (act v of 1908), section 109 - final order, meaning of--fit case for certificate. - .....prasad v. kashi krishna narain 28 i.a. 11 : 23 a. 227 : 5 c.w.n. 193 that the corresponding clause of the code of 1882 was intended to cover very special cases, for example, those in which the point in dispute was not measurable by money, though it might he of great public or private importance. lord hobhouse added that to certify that the case was of that kind or not, was left entirely in the discretion of the court, and it was a judicial process which should not be performed without special exercise of that discretion evinced by the fitting certificate. it has further been pointed out that the discretion vested in the court under the corresponding provision of the code of 1882 has been very sparingly exercised. we have attached due weight to these considerations but in view of.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. The petitioner contends that the order in question is a final order within the meaning of Clause (a) of Section 109 of the Code of Civil Procedure, and that, in any event, the case is such that this Court should certify under Clause (c) of Section 109 that it is a fit one for appeal to His Majesty in Council.

2. This petitioner has Instituted a suit for declaration that a mortgage decree obtained by the opposite party is fraudulent, and for permanent injunction to restrain the execution of that decree. During the pendency of that suit, an application was made for a temporary injunction to restrain the execution of that decree. The Subordinate Judge at one stage refused the application for a temporary injunction, but later on granted the application. On appeal to this Court that order has been reversed, and the application for temporary injunction refused. The petitioner now seeks for leave to appeal against this order. In our opinion, it is plain that the order is not a final order within the meaning of Section 109 of the Code of Civil Procedure. It has been repeatedly ruled that the term final order denotes an order which finally decides tiny matter directly at issue in the case in respect of the rights of the parties. This the order in question does not profess to do. Hut it has been argued that the outer embodies an expression of opinion on the matters in controversy between the parties; it is plain, however, that such an expression of opinion is not a final decision of the question at issue between the parties in the suit. It was ruled in Chundi Dutt Jha v. Pudmanund Singh 22 C. 928 that an order refusing to appoint a Receiver is not a final order within the meaning of Section 595 of the Code of 1882; it was similarly held in Mahomed Musaji Saleji v. Ahmed Musaji Saleji 10 Ind. Cas. 444 : 13 C.L.J. 681 that an order appointing a Receiver is not a final order. It has also been held in Srinivasa Prasad Singh v. Kesho Prosad Singh 10 Ind. Cas. 444 : 13 C.L.J. 681 that an order refusing to stay execution of a decree is not a final order. We are of opinion that the order of this Court, made in reversal of the order of the Court of first instance, refusing to issue a temporary injunction against the execution of the mortgage decree, is not a final order, and the petitioner is not entitled to ask for a, certificate on that ground.

3. It has been argued in the next place that this is a fit case for a certificate under Section 109, Clause (c). It is to be observed that whereas in Clause (a) the expression 'final order' is used, in Clause(c) the term 'order' is used, and consequently on the discussion of the second point, no question arises whether the order in question is final or not. It has been pointed out to us that if leave is refused and the order of this Court is allowed to stand, grave injury might be done to the petitioners and that needless complications might occur much to their detriment. On behalf of the opposite party it bus been argued that this is not a circumstance which the Court should at all take into account to determine whether a certificate should or should not be granted under Clause (c) of Section 109. In this connection our attention has been drawn to the observation of Lord Hobhouse in Jbanarsi Prasad v. Kashi Krishna Narain 28 I.A. 11 : 23 A. 227 : 5 C.W.N. 193 that the corresponding clause of the Code of 1882 was intended to cover very special cases, for example, those in which the point in dispute was not measurable by money, though it might he of great public or private importance. Lord Hobhouse added that to certify that the case was of that kind or not, was left entirely in the discretion of the Court, and it was a judicial process which should not be performed without special exercise of that discretion evinced by the fitting certificate. It has further been pointed out that the discretion vested in the Court under the corresponding provision of the Code of 1882 has been very sparingly exercised. We have attached due weight to these considerations but in view of all the circumstances of the case, we have arrived at the conclusion that tins is a lit case in which a certificate should be granted. It is not necessary for US to express any opinion on the merits of the controversy between the parties: but after an anxious consideration of the whole situation, we feel no doubt that the case is a fit one for appeal to His Majesty in Council. A certificate will isssue accordingly.


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