This is an application for leave to appeal to the Supreme Court of India against the Judgment and Order passed by us in O.S.A. No. 122 of 1951, dismissing it. This appeal arose out of proceedings under the Indian Arbitration Act. On 2nd November, 1950, an ex parte award was passed for a sum of Rs. 21,052-12-8 with interest and costs in favour of the third respondent herein and against the petitioner. The award was filed into this court in O.P. No. 66 of 1951 which prayed for making the award a rule of Court. Notice of filing the award was served on the petitioner on 27th March, 1951. Under Article 158 of the Limitation Act the petitioner had a period of thirty days from the date of service of notice of filing the award to file an application to set aside the award. The petitioner did not file any such application within time but filed an application, No. 2355 of 1951) purporting to be under section 5 of the Limitation Act for excusing the delay in filing the application to set aside the award. That application was dismissed by Krishnaswami Nayudu, J., on the ground that section 5 of the Limitation Act did not apply. There was an appeal under clause 15 of the Letters Patent and we dismissed the appeal agreeing with the learned Judge that section 5 of the Limitation Act has no application to proceedings in Court under the Arbitration Act. It is against this decision of ours that the petitioner seeks leave to appeal to the Supreme Court.

At the very outset we may mention that the question of law involved in this appeal, in our opinion, is of such general importance that we have no hesitation in certifying that the case is a fit one for appeal to the Supreme Court under Article 133(i)(c) of the Constitution.

The only question on which we have felt considerable difficulty is whether our order can be said to be a judgment, decree or final order in a civil proceeding within the meaning of Article 133(1)(c) of the Constitution. There is no direct decision on the point to help us to decide this question. Our attention has been drawn to several decisions of the Privy Council, the Federal Court and of several High Courts in India but we have felt not a little difficulty in applying the test laid down by the Privy Council and by the Federal Court to the facts of the present case.

In view of the observations in the decision of the Federal Court in Mohammed Amin Brothers v. Dominion of India1, it is difficult to maintain the position that the order now under appeal is a judgment or decree. Mukherjea, J., pointed out in that decision that in English Courts the word “judgment” is used in the same sense as a “decree” in the Civil Procedure Code and it means the declaration or final determination of the rights of the parties in the matter brought before the Court. It is clear that calling our order “a judgment” would not really be of much assistance in deciding the question which falls for decision because it would nevertheless remain to be considered whether the judgment is an interlocutory judgment or “a final judgment”. It is only a final judgment that will fall within the category of judgment referred to in Article 133(1) of the Constitution.

The scope of the expression “final order” was fully discussed by the Federal Court in the ruling reported in S. Kuppuswami Rao v. King2. Though that case arose out of criminal proceedings, their Lordships were called upon to construe the expression “final order” in section 205(1) of the Government of India Act, 1935. The test laid down in that decision was that it is only an order which finally disposes of the rights of the parties and determines the points in dispute and brings the case to an end that can be called a “final order”. A preliminary or interlocutory order would not therefore be a “final order”. Kania, C.J., referred to several English authorities and two rulings of the Judicial Committee, in Ramchand Manjimal v. Govardhandas Vishindas Ratanchand3 and Abdul Rahman v. D.K. Cass