This is an application for leave to appeal to the Federal Court against the judgment and decree of this Court in A.S. Nos. 240 and 414 of 1945.

The suit was one for partition. No less than fourteen issues were framed. One of the questions raised in the issues was whether the suit was maintainable in view of the allegation that there was a prior partition. The learned Subordinate Judge found that issue against the plaintiffs. He also considered some other issues; but with regard to issues 6 to 8, relating to the debts of the family, the F Schedule property, and the liabilities of the family, he gave no finding at all, directing that these matters might be determined by a commissioner in the course of execution. In appeal, this Court held that there had been no prior partition and that therefore the suit for partition was maintainable. This Court further held that it was wrong on the part of the learned Subordinate Judge not to have decided issues 6 to 8, on which evidence had been let in. The appeal was therefore allowed and the suit remanded for disposal after the learned Subordinate Judge had given findings on issues 6 to 8.

It is argued on these facts that the order of this Court was a final order, in that it determined the cardinal questions in issue in the suit and that the matters left open were of little importance. We are unable to accept this view.

The learned advocate for the appellant has relied principally on two cases referred to in the judgment of the Privy Council in Abdul Rahman v. D.K. Cassim and Sons1. They are Muzhar Hossein v. Bodha Bibi2, and Rahimbhoy Habibhoy v. Turner3. Their Lordships however pointed out in Abdul Rahman v. D.K. Cassim and Sons1, that those cases were decided with reference to the Civil Procedure Code of 1882, in which the wording of the relevant section differed materially from that of the Code of 1908. Their Lordships then went on to say with regard to Muzhar Hossein v. Bodha Bibi1, the case relied on principally by the appellants, that,

“if the effect of the Appellate Court’s decree had been (as in the present case) merely to remand the case for trial on the merits, different considerations would have applied. Their Lordships think, therefore, that neither of these authorities is applicable to the case now before them.”

The principle laid down by their Lordships was that the test of finality is whether the order in question finally disposes of the rights of the parties. That principle was laid down in Ramchand Manjimal v. Goverdhandas Vishindas Ratanchand2, and adopted by their Lordships in Abdul Rahman v. D.K. Cassim and Sons3. In the latter case,‘the plaintiff was adjudicated an insolvent and the Official Assignee refused to proceed with the suit. The trial Court thereupon held that the suit was no longer maintainable. In appeal, it was held that the claim for damages did not vest in the Official Assignee and the suit was therefore remanded for disposal on the issues in the suit. It was held that the order of the appellate Court was not a final order since the questions that arose in the suit were still open.

There are two decisions of this High Court dealing with this question. The first of them is Mangayya v. Venkataramanamurthi4, in which the learned Judges held, that where a suit was remanded for further trial on the merits, it would not amount to a final judgment within the meaning of S. 109(a) of the Civil Procedure Code. They further held that an order of remand could only be said to be a final order when every issue of fact had been found by the appellate Court and the remand was directed solely with a view to give the consequential reliefs dependent upon the conclusions of the appellate Court. More recently, the matter came before this Court in Ramanathan Chettiar v. Palaniappa Chettiar5, where the learned Judges were considering an appeal from a decree in a suit on a promissory note. The learned Judges in appeal disposed of all the main issues in the suit; but wer