Civil Misc. Petition No. 2351 of 1970

15th September, 1970.

Petitioner Counsel: The following Judgment of the Court was delivered by

Cases Cited:
Ramesh v. Gendalal Motilal Patni, (1966) AIR 1966 SC 1445 (V 53),(1966) 3 SCR 198 [Para 1]
M/s. Jethanand and Sons v. State of Uttar Pradesh, (1961) AIR 1961 SC 794 (V 48),(1961) 3 SCR 754 [Para 1]
V. M. Abdul Rahman v. D. K. Cassim and Sons, (1933) AIR 1933 PC 58 (V 20),(1933) 60 Ind App 76 [Para 1]

JUDGMENT

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 Ramesh v. Gendalal Motilal Patni, AIR 1966 SC 1445 and says that his case is covered by this ruling. That was a case in which the only question to be considered was whether Article 133 of the Constitution was applicable in the two cases decided when the claim in the original suit or appeal to this Court was above Rs. 20,000/-. This particular question was not before the Court at all. Indeed, the Constitution contemplates the filing of an appeal by certificate only against a judgment, decree or final order of the High Court. It does not contemplate bringing an appeal in a suit which is still a live suit and in which further proceedings are 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 v .D. K. Cassim and Sons, (1933) 60 Ind App 76 = (AIR1933 PC 58). There is a catena of cases in the High Court and also in this court that the judgment, decree or order from which appeal is brought to this Court must put an end to the litigation between the parties. This was reaffirmed in M/s. Jethanand and Sons v. State of Uttar Pradesh, (1961) 3 SCR 754 = (AIR 1961 SC 794) approving the view of the Privy Council referred to. Indeed, we could cite on this aspect of the case quite a large number of precedents 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 Order 9, Rule 9 (6?) 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 the 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.

Appeal Dismissed