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Madras High Court
Nayari Venkata Ranga Row Garu vs Raja Keesara Venkatarama … on 18 September, 1913
Equivalent citations: (1914) 26 MLJ 96


ORDER

1. We find ourselves unable to give the certificate applied for, for the reason that the orders of this Court are not final orders within the meaning of Section 109 of the Code of Civil Procedure.

2. In these cases, no question between the parties in regard to their rights, as against one another has been decided. One case has been remanded for trial on the ground that the District Judge was wrong in deciding that the pleadings were insufficient, and the other on the ground that he was wrong in applying Section 43 of the former Code of Civil Procedure in bar of the suit. These are clearly preliminary points having no connection with the merits of the suits. We are invited for the petitioners to hold that the orders of remand are final orders within the meaning of Section 109 of the Civil Procedure Code ; but we are unable to accept the invitation. In this Court the only authority cited Tirunarayana v. Gopalasami (1889) I.L.R. 13 M. 349 is against the petitioners. We have been referred to the decisions of the Privy Council in Rahimbhoy Habibhoy v. C.A. Turner (1890) I.L.R. 15. B. 155 (AC); Syed Muzhar Hossein v. Mussamat Bodha Bibi (1899) I.L.R. 17 A. 112 ; Badha Krishna v. The Collector of Jaunpur (1900) I.L.R. 23 A. 220 (P.C.) and Chandra Kunwar v. Chaudhri Narpat Singh (1906) I.L.R. 29 A. 184 (P.C.). None of these cases as we understand them is an authority in favor of the petitioner. In Bahimbhoy v. C.A. Turner (1890) I.L.R.15. B. 155 (AC) and Syed Muzhar Hussain v. Mussamat Bhoda Bibi (1899) I.L.R. 17 A. 112 where appeals were held competent on the merits on which the decision of the disputes depended had been decided, and in the latter case their Lordships distinguished the case before them from cases in which the decision reversed had proceeded upon a preliminary point, and observe with reference to such cases that the practice of the Allahabad High Court in treating orders of remand interlocutory was probably quite correct. In Chandra Kunwar v. Chauddhri Narpat Singh (1906) I.L.R. 29 A. 184 (P.C.) the appeal was heard by the Privy Council, but it is not clear to us that the decision reversed by the High Court had proceeded merely upon a preliminary point: there is no discussion of this question in the report, and it does not appear that objection was taken to the competency of the appeal.

3. In Ahmed Hussain v. Gobind Krishna Narain (1911) I.L.E. 33 A. 391 the High Court declined to grant a certificate in a case similar to the present cases and did not refer to Chandra Kunwar v. Chaudhri Narpat Singh (1906) I.L.R. 29 A. 184 (P.C.).

4. In Forbes v. Ameer-oon-nissa Begum (1865) 10 M.I.A. 359 an order of remand is described as an interlocutory order. There is thus no decision of the Privy Council to the effect that orders like those made in the cases before us are final orders within the meaning of the provision of law in which we are considering; and the only authority in this Court points the other way.

5. We are asked to hold that under the present Code of Civil Procedure these orders must be deemed to be final, because under Section 105 of that Code it is necessary to appeal against them without waiting for final decision of the case. Section 105 of the Code does not apply to appeals to His Majesty in Council, and does not we think operate to give a new meaning to the word ” final” in Section 109, or supply a guide to the interpretation of that section. On this point we agree with the observations in Ahmad Husain v. Gohind Krishna Narain (1911) I.L.R. 33 A. 391.

6. A different view was taken in Saratmani Debi v. Bhatiakrishna Banerjee (1909) 10 C.L.J. 336 where most of the decisions are considered, and it may be that that case is distinguishable from Krishna Chandra v. Ram Narain (1913) 18 C.L.J. 124 where the judgment does not give reasons at length. But we think that the observation in Muzhar Hossein v. Mussamat Bodha Bibi (1894) I.L.R. 17 A. 112 support the authority of Tirunarayana v. Gopalasami (1889) I.L.R. 13 M. 349 and that we ought to follow the decision.

7. We reject the petitions.

8. The Petitioner will pay to the 1, 2, 3, 5, 6, 7, 9, 11,15 and 16th respondents in C.M. P. 283 of 1910 Rs. 102-0-0 and to the 1, 2, 4, 7 to 12, 18 and 19th Respondents in C.M.P. 284 of 1910 Rs. 102-0-0 for their costs of these petitions.


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