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Khagendra Nandan Asram Vs. Sahayram Chakravarty and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal177,62Ind.Cas.776
AppellantKhagendra Nandan Asram
RespondentSahayram Chakravarty and ors.
Cases ReferredAnanda Gopal Gossain v. Nafar Chandra Pal Chowdhury
Excerpt:
civil procedure code (act v of 1908), section 109 - appeal to privy council--suit dismissed on preliminary point--appeal--remand, order of, whether final order or decree. - .....of the suit, and one that can never, while this decision stands, be disputed again, is a final decree for the purposes of appeal to the queen in council, notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit.' that case has been followed by the decision of maclean, c.j., in the case of ananda gopal gossain v. nafar chandra pal chowdhury 85 c. 618 : 12 c.w.n. 545 : 8 c.l.j. 168. there the first court had decided that a notice had not been properly served; the high court took the opposite view and held that the notice had been properly served and remanded the case to be tried out on other issues. the learned chief justice held that the decision of the high court was a decree or final order within the meaning of section 595 of the code of.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an application for a certificate that the case is a fit one for appeal to the Judicial Committee of the Privy Council.

2. A suit was brought by some members of the public, with the consent in writing of the Advocate-General, under Section 92 of the Code of Civil Procedure in respect of a temple known as Gaptipara Muth. The first defendant claimed to be the mohunt of the temple.

3. The first defendant had brought a suit against certain person or persons who had been appointed as manager or managers of the temple, and in that suit he obtained a decree and was held to be the duly constituted mohunt and entitled to the properties belonging thereto.

4. The first Court which tried the present suit, to use the words of my learned brother Mr. Justice Mookerjee, 'dismissed the suit on the ground that the trial of the question raised herein is barred by the result of the decision in an earlier suit which was pending at the date of the institution of the present suit.'

5. The learned Judges who heard the appeal held that that conclusion was wrong and that the decision in the other suit did not bar the investigation of the questions raised in the present suit, and accordingly they remanded the case to be heard on the merits. The question which we have to consider is whether this is a decree or final order within the meaning of Section 109 of the Code of Civil Procedure.

6. When the question was put to the learned Counsel for the respondent in the first instance whether, if the Privy Council were to uphold the decision of the first Court, it would put an end to the suit altogether, he was constrained to admit that it would, but later on he contended that such a decision would not put an end to the suit and urged that it might still be open to the plaintiff to claim that a scheme should be directed to be framed. On looking at the pleadings, however, as at present advised, it appears to me that if the Judicial Committee were to uphold the decision of the first Court, it would finally dispose of the main issues in the suit even though there might be subordinate enquiries to be made in the suit and, therefore, the Question arises as to whether it is a decree or final order within the meaning of Section 109 of the Code of Civil Procedure. The principle which is applicable in such cases is that laid down by the Judicial Committee of the Privy Council in the case of Saiyid Muzhar Hossein v. Bodha Bibi 17 A. 112 (P.C.) : 5 M.L.J. 20 : 22 I.A. 1 : 6 Sar. P.C.J. 580 : 8 Ind. Dec. (N.S.) 397 (P.C.), which is as follows:--'An order comprising the decision of the Appellate High Court upon a cardinal issue in a suit, that issue being one that goes to the foundation of the suit, and one that can never, while this decision stands, be disputed again, is a final decree for the purposes of appeal to the Queen in Council, notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit.' That case has been followed by the decision of Maclean, C.J., in the case of Ananda Gopal Gossain v. Nafar Chandra Pal Chowdhury 85 C. 618 : 12 C.W.N. 545 : 8 C.L.J. 168. There the first Court had decided that a notice had not been properly served; the High Court took the opposite view and held that the notice had been properly served and remanded the case to be tried out on other issues. The learned Chief Justice held that the decision of the High Court was a decree or final order within the meaning of Section 595 of the Code of Civil Procedure then in force, and that an appeal to the Privy Council would lie.

7. Having regard to these decisions and the facts above mentioned in my judgment, the decision of the High Court was in respect of a cardinal issue in the suit, and, therefore, was a final decree for the purpose of appeal to His Majesty in Council. The judgment of the High Court being one of reversal and there being no question as to the value of the subject-matter of the suit and of the appeal, a certificate will he granted.

Richardson, J.

8. I agree. Although the order of the High Court against which it is desired to appeal is interlocutory in its character, it is quite clear that it finally disposes of one of the issues between the parties, in a manner which may be of great importance in the result. The suit having been dismissed in the Trial Court on a preliminary point, the dismissal has been set aside and the suit remanded for trial on the remaining issues. The order, as an order of remand, is conclusive so far as it goes and if not appealed from now, could not be attacked in an appeal from the decree which the Trial Court might ultimately make.


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