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405
PRAKASH CHAND AGARWAL & ORS.
v.
M/S. IUNDUSTAN STEEL LTD.
September IS, 1970
[M. H!DAYATULLAH, C.J., G. K. MITTER AND A. N. RAY, JJ.J
Constitution of India. A.rt. 133-Grana of certificate, in a live suit-
Whether competent.
The High Court granted certificate far leave to appeal to this Court
in a case where it set aside the ex-parte decree in the suit and restored
the suit to the file of the trial court
HELD : The certificate granted by the High Court was premature and
was not competent.
As a result of the setting aside of the decree the suit was very much
alive, and It could not be treated. as a final adjudication of the suit itsel'f.
The Constitution contemplates the filing of an appeal by certificate only
against a judgment, decree of final order of the High Cowt. It does not
OO!lfamplate bringing an appeal in a suit which is still a live suit and
in which further proceedings are to be taken. (405 HJ
Ramesh & A.nr. v. Gendala/ Motilal Ratni & Ors. AJ:R. (1966] S.C.
1445, Y. M. A.bdul Rahmpn & Ors. v. D. K. Casslm 4 Sons & A.nr.
(1933) L. R. 60 I.A. 76 and Mis. /ethanand & Sons v. The State of
Uttor Pradesh, [1961] 3 S.C.R. 754, referred to.
CIVIL APPELLATE JURISDICTION : C.M.P. No. 2351 o{ 1970.
(Application for stay by notice of motion) and Civil Appeal
No. 1196 of 1970.
Appeal from the judgment and order dated October 29, 196!)
,of the Orissa High Court in Misc. Appeal No. 28 of 1967.
R. K. Agarwal, for the appellants.
Santo.sh Chatterjee and G. S. Chatterjee, for the respondent.
The Order of the Court was delivered by
Hidayatullah, C.J.
The appellants before us who come by
way of certificate from the High Court seek stay of a suit which
has been restored to file by the High Court. At the very start we
put to the counsel how certificate could have been granted in this
case when the judgment and order of the High Court were not
final.
The counsel brought to our notice the case of Rame~h and
another v. Gemlalal Motilal Ratni and others(1) and says that his
case is covered by this ruling.
This was a case in which the only
question to be considered was whether Art. 13 3 of the Constitution
was applicable in the two cases decided when the claim in rhe
original suit or appeal to this Court was above Rs. 20,000/-. This
particular question was not before the coun at all. Indeed, the
Constitution contemplates the filing of an appeal by certificate only
(I) A.I.R. 1966 S.C. 1445.
406
SUPREME COURT REPORTS
[1971] 2 S.C.R.
against a judgment decree or final order of the High Court.
Jt
does not contemplate bringing an appeal in a suit which is stm a
live suit and in which further proceedings arc to be taken.
This
has been the consistent view not only of this Court but also of the
Privy Council.
The leading case from the Privy Council is V. M.
Abdul Rahman and 9thers v.
V. D. K. Cassim a11d Sons and
another('). There is a catena of cases in the High Courts and
also in this Court that the judgment, decree or order from which
appeal is brought to this Court must put an end lo the litigation
between the parties.
This was reaffirmed in Mis. Jethana11tl and
~?ns v. The State of Uttar Pri!desh(2) approving the view of the
P:ivy Council referred to.
Indeed, we could cite on this aspect of
the case quite a large number of procedlmts from various courts
in India. In the present matter; the suit was decreed in the
absence of the defendant who applied to have the decree set aside
and gave reasons for it.
The trial court did not accede to the
prayer but the' High Court held that the matter was governed by
0. 9 r. 9 of the Code of Civil Procedure and that there were valid
reasons for setting aside the ex-parte decree. As a result of the
setting aside of the decree the suit is very much alive today and
this cannot be treated as a final adjudication of µte suit itself. The
certificate granted by the High Court in such circumstances was ,
premature and was not competent.
We accordingly set aside the
certificate and dismiss the appeal.
There shall be no order as to
costs.
Y.P.
Appeal dismissed.
(I) (1933) t. R. 60 I.~. 76.
(2) (1961) 3 S. C.R. 754.
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