1. This is an application by defendants Nos. 1, 2, 4 and 5 for leave to appeal to His Majesty in Council The suit was brought by the plaintiff for the recovery and possession of certain property and for a declaration of the plaintiffs' right thereto. The defendants were sued in their individual capacity.
2. The first Court dismissed the suit where-upon there was an appeal to the High Court and the matter came before Mr. Justice Chatterjea and Mr. Justice Smither, and the judgment shows that the learned Judges were inclined to think that the defendants ought not to have been sued in their personal capacity and the conclusion at which they arrived was this: 'We think that under these circumstances and in order effectually and completely to adjudicate all the questions involved in the case, the defendants Nos 2 and 4 to 6 should be sued personally as well as executors and the defendant No 1 sued as the residuary legatee and heir of Jogendra Nath.'
3. Mr. Chakerbutty for the applicants argued that inasmuch as that judgment involved the setting aside of the decree of the first Court it was a judgment of reversal and as the property was of the requisite amount his clients consequently had a right of appeal The decree is as follows: 'It is ordered and decreed that the decree of the lower Court be and the same is hereby set aside and the case sent back to that Court to be dealt with in accordance with the directions contained in the judgment of this Court of this day's date in this appeal pronounced, a copy whereof is hereto annexed.'
4. Now the question we have to consider is whether this is a decree or final order within the meaning of paragraph A of Section 109 of the Code of Civil Procedure. In form it may be said to be a judgment of reversal because the decree of the first Court is aside. If we look, however, at the substance of it, it is not a decree or final order in any sense of the word. The effect of the decree and judgment is that the learned Judges have remanded the case and have directed that defendants Nos. 2 and 4 to 6 should be sued both in their personal capacity and as executors and that the first defendant should be sued as the residuary legatee and heir and that after the amendment had been made all the questions between the parties should be adjudicated upon.
5. In these circumstances it is not a final order within the meaning of the section. The judgment which I have just delivered is confirmed by a decision in Krishna Chandra v. Ram Narain Singh 21 Ind. Cas. 430 : 18 C.L.J. 124. It is a judgment of the late Chief Justice and is a case somewhat similar to the present. It was there contended that inasmuch as the decree of dismissal made by the Court of first instance had been set aside by the High Court, the order of the High Court, though it remanded the suit for trial on the merits, was a final order against which an appeal lay to the Judicial Committee. Sir Lawrence Jenkins said: 'It is suggested in this case, that there is a final order from which an appeal will lie. Having regard to the circumstances of the case, it appears to us that there is no order which is final within the meaning of Section 109 of the Code of Civil Procedure.'
6. Having regard to all the circumstances of the present case, it appears to me that there is no order which is final within the meaning of the section and consequently this application must be refused with costs', five gold mohurs.
7. We make no order as to the costs of Babu Sarat Chunder Khan's client.
John Woodroffe, J.
8. I agree. Neither in my opinion is it a final decree or order within the meaning of the Code.