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. On