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1932 Supreme(SC) 73
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD THANKERTON, LORD WRIGHT, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
ABDUL RAHMAN, SINCE DECEASED - Appellant
Versus
D. K. CASSIM AND SONS - Respondents
On Appeal from the High Court at Rangoon.
Decided On : December 19, 1932.
Solicitors for appellant:Cutler, Allingham & Ford. Solicitor for respondent firm: J. E. Lambert.
An order remanding a suit for trial after reversing a preliminary dismissal is not a "decree" or a "final order" under Section 109(a) of the Code of Civil Procedure, as it does not finally dispose of the parties' rights, leaving the suit "live."
Headnote:(A) Code of Civil Procedure, 1908 - Sections 109(a) and 110 - Order XLI, Rule 23 - Order XLIII, Rule 1(u) - Order of remand - Finality of order - An order remanding a case for trial after reversing a decree of dismissal on a preliminary point is an "order" and not a "decree" - The test of finality for an order under Section 109(a) is whether the order "finally disposes of the rights of the parties" - If the suit remains a live suit in which the rights of the parties are still to be determined by the courts in the ordinary way, no appeal lies as a final order, even if a vital issue has been decided.
(B) Appeal - Competency - Where an appellate court sets aside a dismissal and remands the suit for trial on merits, such an order does not finally dispose of the rights of the parties and is therefore not a "final order" within the meaning of Section 109(a).
Facts of the case:
A suit for damages was instituted, but during the proceedings, the plaintiffs were adjudicated insolvent. The trial court dismissed the suit after the official assignee declined to proceed without security. The appellate court reversed this dismissal, holding that the cause of action was personal and did not vest in the assignee, and remanded the suit for trial on the merits. The defendant challenged the competency of the appeal against this remand order.
Findings of Court:
The order of remand was made under Order XLI, Rule 23 and is an "order" rather than a "decree." It did not finally dispose of the rights of the parties but left them to be determined during the trial.
Issues: Whether an order of the appellate court reversing a decree of dismissal and remanding the suit for trial on the merits constitutes a "decree" or a "final order" appealable under Section 109 of the Code of Civil Procedure.
Ratio Decidendi: The court held that for an order to be "final" under Section 109(a), it must finally dispose of the rights of the parties in relation to the suit. If the suit remains "live" and the rights are to be determined in the ordinary course of trial, the order is not final, regardless of the importance of the issue decided.
Result: Appeal incompetent; dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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appeals
- maintainability
- final orders
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civil procedure code
- remand
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appeals
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tort
- conspiracy
Judgement
Appeal (No. 30 of 1931) from an order of the High Court in its appellate jurisdiction (June 23, 1930) reversing a decree of Cunliffe J. and remanding a suit for trial.
The respondent firm instituted a suit in the High Court claiming damages from the appellant, since deceased, and the second respondent. Shortly after the hearing commenced the firm was adjudicated insolvent upon their own petition, and thereupon the official assignee was joined as a plaintiff. As the official assignee declined to proceed with the suit in the absence of security Cunliffe J. made a decree dismissing it. Upon an appeal by the firm Page C.J. and Das J. held that the cause of action was personal and did not vest in the assignee ; accordingly they set aside the decree and remanded the suit for trial. The appeal is reported at I. L. R. 8 Ran. 441.
The order of the Court, so far as material, was in the following terms " It is ordered and decreed that the decree of this Court on the original side be and the same is hereby set aside and that the suit be remanded to this Court on the original side for trial on the merits.....And it is further ordered that a copy of this decree be sent to the Collector, Rangoon....."
An application for a certificate that the case was fit for appeal to the Privy Council was heard by Carr and Cunliffe JJ. The learned judges held that the order was a " final order within the meaning of s. 109 (b), and as the requirements of s. 110 were complied with (in that the decree of the trial judge had been reversed and the subject-matter exceeded Rs. 10,000) a certificate was granted.
1932. Nov. 24. Upjohn K.C. and Pennell for the respondent firm. This appeal is not competent, as it is not from either a " decree " or " final order " within s. 109 (b) of the Code of Civil Procedure. The order appealed from was not a " decree," because the power to remand was under Order xli., r. 23, which empowers the making of an " order." Reference was made also to s. 2, sub-s. 2, of the Code. It was not a final order between the parties, because it did not " finally dispose of their rights, but left them to be determined by the Courts in the ordinary way " Ramchand Manjimal v. Goverdhandas Ratanchand. (( 1920) L. R. 47 I. A. 124.) As to the English decisions reference was made to Isaacs
v. Salbstein ([ 1916] 2 K. B. 139.) and cases there mentioned.
Dunne K.C. and Leach for the appellant. What is appealed from is a decree or final order in that it finally determined between the parties that the appellant had a cause of action. The right of appeal is supported by the judgments of the Board in Rahimbhoy Habibhoy v. Turner (( 1890) L. R. 18 I. A. 6.) and Syed Muzhar Husein v. Bodha Bibi . (( 1894) L. R. 22 I. A. 1.) As in those cases the Court here, after adjudicating upon the cardinal question before it, had made an order of remand. What is appealed from described itself in terms as a "decree." Ramchand Manjimal’s case (( 1920) L. R. 47 I. A. 124.) is distinguishable, because there the High Court determined as a matter of discretion merely that the dispute should not be referred to arbitration. The English decisions are not in pari materia and do not help.
Upjohn K.C. replied.
Dec. 19. The judgment of their Lordships was delivered by
SIR GEORGE LOWNDES. The suit out of which this appeal arises was instituted in the name of the first respondent firm (hereinafter referred to as " the first respondents ") on the original side of the Rangoon High Court, alleging, in effect, a conspiracy between the two named defendants to ruin the business of the first respondents, and claiming Rs. 5,00,000 by way of damages. The first of the two defendants was the appellant, V. M. Abdul Rahman, now deceased, and represented by his heirs. The other was the second respond ent, who does not appear before the Board.
After the hearing of the suit had commenced in the trial Court the first respondents were—apparently upon their own application—adjudicated insolvents. O
