An order of remand is not a final order within the meaning of Article 133 of the Constitution of India and Section 109 of the Civil Procedure Code.

DAVE, J.

( 1 ) THIS is an application by defendant Amsingh for leave to appeal to the Supreme court of India under Article 133 of the Constitution of India read with Section 109 of the Civil Procedure Code.

( 2 ) THE brief facts giving rise to this application are that the plaintiff, opposite party, filed a money suit on 23rd of January 1952 in the Court of the Disrtict judge, Balotra against the petitioners father for the recovery of Rs. 38,845/9/3 on the basis of two Khatas dated 15th of December 1947. The petitioners father having died during the pendency of the suit, the petitioner was impleaded as his legal representative. The petitioner traversed the entire claim and took a number of pleas, one of them being on the ground of limitation. The trial Court decided only the issue regarding the limitation and dismissed the claim. The plaintiff came in appeal to this Court. That appeal was heard by a Full Bench and it was held that the plaintiffs claim was within limitation. The decree of the trial Court was, therefore, set aside and the case was remanded for trial on the remaining issues. It is against that order dated the 26th of November 1954 that the defendant wants to go in appeal to the Supreme Court and requires a certificate for that purpose.

( 3 ) IT is urged on behalf of the petitioner that the value of the subject-matter of the suit in the Court of first instance was more than Rs. 20,000/-and the value of the subject-matter in dispute on appeal to the Supreme Court would also be the same, that the question of limitation involved is a substantial question of law and, therefore, he is entitled to the certificate asked for. The non-petitioner has, on the other hand, contended that this Court has not given any decree or final order and that Section 109 and 110 of the Civil Procedure Code are controlled by Article 133 of the Constitution and, therefore, the petitioner is not entitled to any certificate. It is not disputed even by the petitioners learned advocate that Section 109 of the civil Procedure Code is controlled by Article 133 of the Indian Constitution because section 109, C. P, C. itself says that its provisions are subject to the provisions in chapter IV off Part V of the Constitution. " article 133 of the Indian Constitution lays down that an appeal shall He to the supreme Court from any judgment, decree or final order in a civil proceeding of a high Court in the territory of India if the High Court certifies that the case comes within Clause (a), (b) or (c) of that article. We have, therefore, first to see whether the order of this Court dated 26th of November 1954 comes within the purview of the terms "judgment, decree or final order". It is obvious that it does not amount to a decree because it is not a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matter in controversy to the suit. Learned counsel for the petitioner has urged that the said order amounts to a decree because it decides one of the matters namely the question of limitation which was in controversy in the suit between the parties, conclusively. In support of his arguments, he has referred to Mahaklal v. Madanlal, 1955 Raj LW 150 (A ). It may be pointed out that the facts of that case were very different. In that case, the plaintiff had brought a suit for redemption of a certain shop. It was dismissed by the trial Court holding that the plaintiff had no right to redeem the disputed property. On appeal by the plaintiff, the first appellate Court gave a decision that the plaintiff had a right to redeem. It also framed a decree but remanded the case to the trial Court saying that the trial Court had held the suit time barred without framing any issue on that point, that the parties were unable to lead their evidence on the question of limitation and, therefore, the trial Court was directed to frame an issue on the question of limitation, record the evidence which might be adduc