P L D 1960 Dacca 750 (PLP)

AKBAR, J.‑These two applications for leave to appeal to the Supreme Court which arise out of the same judgment have been heard together at the request of the parties. The facts are as follows:

2. The Patiya Tea Company, Limited (hereinafter referred to as the Company), obtained a loan from the United Bank of India Limited (hereinafter referred to as the Bank), by mort gaging the Patiya Tea Garden. Subsequently, they also obtained sum of money from the Bank by hypothecating the tea crop, quota, etc. In 1952, the Bank filed Other Suit No. 10 of 1952 in the Court of Subordinate Judge, Chittagong, on the aforesaid hypothecation bond. They also filed Mortgage Suit No. 30 of 1952 against the Company on the aforesaid mortgage bond. In March 1953, the petitioner Khan Bahadur Badi Ahmed Chowdhury was made a Director‑in‑charge bf the Company: In 1954, on the application of the Bank, the said Khan Bahadur was appointed a Receiver in the aforesaid suits, and his appoint ment was to last till the disposal of the suits. On 21‑1‑55 both the Suits Nos. 10 and 30 of 1952 were decreed in preliminary form. On 21‑6‑55 the said decrees were made final. On 6th September 1955, the Bank put the decrees into execution. On 10th September 1955, Khan Bahadur filed two applications under the provisions of sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act for stay of execution of the aforesaid decrees. By a resolution of the Board of Directors of the Company passed on 14th September 1955, the appointment of the Khan Bahadur as Director in‑charge of the Company was terminated with effect from 19‑1‑

55. On 3‑1‑55, the Sub ordinate Judge allowed the applications filed under sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act, and stayed the execution cases.

3. The Bank appealed against the above orders to the High Court and the said appeals were numbered as F. M. As. Nos. 24 and 25 of 1956. On 30th August 1956, a petition of com promise was filed in the said appeals, and the Court passed the following order: "The appeal is disposed of in terms of compromise signed by the parties and filed in Court to‑day. The petition of compro mise will form part of the decree of the Court." The said compromise provided for appointment of two Joint Receivers, namely, Babu Manindra Krishna Das Barman, local Managing Director of the Company, and Babu Kiran Kumar Roy, Agent of the Bank.

4. On 2nd October 1956, the executing Court ordered issue of writs to the Joint Receivers. On 5th November 1956, Khan Bahadur filed an application in the executing Court under section 47 of the Code of Civil Procedure, and it was numbered as Miscellaneous Judicial Case No. 76 of 1955. He also filed another application on the same day for recalling the writs, and it was‑ numbered as Miscellaneous Judicial Case No. 77 of 1956. On 17th November 1956, the objections were over‑ruled and the petitions were dismissed. The Khan Bahadur then filed 2 appeals to this Court. The said appeals were heard together by Ispahani and Murshed, JJ. The said Bench upheld the pre liminary point urged by the respondents that the appeals were incompetent. As various other points were argued in the appeals, the Court dealt with the same as follows: (1) That the learned Subordinate Judge in issuing writs had merely carried out the directions of the Court, and, as such, he did not act illegally; (2) That the question whether Khan Bahadur had lien over the property of the Company for the expenses incurred by him as a Receiver could nut be decided by the executing Court which was merely carrying out the orders of the High Court, and if the appellant had any lien as Receiver or Agent of the Company, he could enforce the same in an appropriate proceeding ; (3) That Khan Bahadur's 'appointment terminated automati cally with the passing of the final decree ; and (4) That there was no evidence showing that the order of appointment of the Joint Receivers was obtained by practising fraud on the Court.

5. In short it was held that the executing Court acted legally in carrying out the express direction of this Court, and, as such, it was fully justified in rejecting the objections of the Khan Bahadur. In this view of the matter, they dismissed the appeals.

6. The said Khan Bahadur had filed these two applications for leave to appeal to the Supreme Court.

7. Mr. Guha, the learned Advocate for the opposite‑parties, has taken a preliminary objection that the order passed in this case is not a "final order" within the meaning of Article 158 (1) of the Constitution, and, therefore, no leave can be granted.

8. Mr. Hamidul Huq Chowdhury, the learned Advocate for the applicant, has contended that the proposed appeals satisfy the valuation test as laid down in sub‑clause (a) of Article 158 of the Constitution, and hence, we are not entitled to enter into the question whether the order appealed against was a final order or not. He has argued that for application of sub‑clause (a) of Article 158 of the Constitution it is not necessary that the case should relate to a judgment, decree or final order. In support of his contention he has relied on the provisions of sections 109 and 110 of the Code of Civil Procedure.

9. In clause (1) of Article 158 it is clearly stated that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if it satisfies any of the conditions laid down in clauses (a), (b) and (c). In other words, the preamble portion in clause (1) governs the sub‑clauses (a), (b) and (c) of that Article. No doubt before the Constitution it was open to the High Court to grant a special certificate under section 109 of the Code of Civil Procedure even) in a case where the judgment, decree or order was not a final one. The order appealed against was passed after the inaugura tion of the Constitution. Article 158 of the Constitution provides for appeal to the Supreme Court in a civil proceeding of a High Court. This Article is now the dominant statutory pro vision regulating the right of appeal to the Supreme Court. Hence section 109 of the Code of Civil Procedure cannot override the clear provisions in the Constitution. In Ramaswami Chettur and others v. The Official Receiver (A I R 1951 Mad. 1051, (1055)), the Court, while dealing with a similar contention, observed :‑

"We have to recognise the fact that prior to the Constitution there was no enactment in force except the Code of Civil Procedure and the Letters Patent of the High Courts con ferring and regulating the rights of appeals from the High Courts. But now as a result of Chapter IV, Part V of the Constitution the right of appeal to the Supreme Court is crystallised in clear‑cut terms. If Article 133 prohibits an appeal to the Supreme Court where the decision is not a final order it cannot be said that any earlier statutory provision repugnant to that Article can hold the field any further despite Article 372." We respectfully agree with the above observations. We are, therefore, unable to accept the contentions of Mr. Chowdhury that in such an application we are not entitled to see whether the order appealed against is a final order or not. Hence, unless we are convinced that the order appealed against is a "final order", the provisions of Article 158 cannot be invoked.

10. The main point, therefore, for decision in, these applica tions is, whether the order of dismissal of the objections filed by the petitioner under section 47 or the Code of Civil Pro cedure can be characterised as a `final order' under Article 158 (1) of the Constitution.

11. Mr. Hamidul Huq Chowdhury has contended that the order appealed against finally adjudicated the rights of his client so far as this case was concerned, and hence it could be called a `final order'. On the other hand Mr. Guha has contended that the said order is not a `final order'.

12. What is a `final order' has been decided in a number of cases. It will suffice to refer to some of them.

13. In Solman v. Warner and others ((1891) 1 Q B D 734), Lord Esher, M. R., observed: "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think, for the purpose of these rules, it is final. On the other hand, if that decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."

14. In Firm Ramchand Manjimal and others v. Firm Goverdhandas Vishandas Ratanchand and others (AIR 1920 P C 86), it was held: "An order is not a final order within the meaning of section 109 of the Code of Civil Procedure unless it finally disposes of the rights of the parties."

15. In Bozson v. Altrinchan Urban District Council No. 1 ((1903) 1 K B 547), the Lord Chancellor, while considering what was a `final order', observed: "It seems to me that the real test for determining the question ought to be this : Does the judgment or order, as made, finally dispose of the rights of the parties ? If it does, then I think, it' ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order."

16. Now, the order of the Court against which the peti tioner wants to go to the Supreme Court affirmed the order of the Subordinate Judge rejecting the objections filed by him in an execution case. The executing Court has issued writs to the Joint Receivers in accordance with the order of the High Court. The Joint Receivers approached the Court for police help for obtaining possession of the tea garden of which they were appointed Receivers. The petitioner who was not a party to the suit, and who till the final decree bad acted as a Receiver in the suits, filed two applications, one for cancellation of the writs, and another against giving possession of the tea garden to the Receivers. His main contentions were (a) that he having advanced large sums of his own money as agent of the Company for running the tea garden was entitled to have a lien on the properties of the Company ; (b) that he was out of pocket in discharging his duties as a Receiver, and, as such, he had a lien over the properties of the Company ; and (c) that until his dues were paid up his possession should not be disturbed. The executing Court had no power to disobey the direction of this Court. Hence it overruled the objections of the petitioner. It did not and could not decide the question of lien in those petitions. The High Court while affirming the order of the executing Court, rightly observed that if the petitioner had a lien on the properties of the Company he would enforce it by instituting a suit. It is also clear that the question of lien of this petitioner could not be decided in the execution proceeding: Furthermore, an order appointing a Receiver or removing a Receiver are merely an order for making a provision for the due preservation of the estate during the pendency of the suit or the execution proceeding, and does not affect the rights of the parties. In these circumstances, we are unable to agree with Mr. Chowdhury that the order overruling petitioner's objections finally decided the question of his lien. We have, therefore, no hesitation in holding that the order appealed against is not a `final order'. Nor is it a case fit for being taken to the Supreme' Court. The mere fact that the appeal satisfies the valuation testis would not entitle the petitioner to the leave prayed for.

17. We would accordingly dismiss these applications with costs. Leave to appeal is, therefore, refused. The connected Rules are also discharged but without any order as to costs. BAQUER, J.‑I agree. K. B. A. Applications dismissed.