P L D 1960 Dacca 709 (PLP)

5. The present applications for leave to appeal to the Supreme Court relate to the orders passed by this Court on the 15th of September 1959, as stated above.

6. At the hearing of these applications, Mr. K. Hossain, who has very ably argued the case of the applicant, drew our attention to Article 158 of the Constitution of the Islamic Republic of Pakistan which Article is still in force. The said Article reads as follows: "158 (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in civil pro ceedings‑ (a) if the amount or value of the subject‑matter of the dispute in the Court of first instance was, and also in dispute on appeal is, not less than fifteen thousand rupees or such other sum as may be specified in that behalf by Act of Parliament; or (b) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value ; or (c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court.

7. In the first place, Mr. Hossain has advanced a very attractive argument to the effect that the orders passed by this Court were final orders in the sense that the same were the last orders passed and he has argued that the only function of this Court would be to find whether the subject‑matter of the suit or proceedings in respect of the said order is valued at Fs. 15,0()0 or upwards. Learned Advocate has contended that if on inquiry we are satisfied that the valuation of the suits or proceedings is Rs. 15,000 or upwards, then we have no other function but to accept the said valuation.

8. But the most pertinent question is that the application must be in respect of a judgment, decree or final order. We have, therefore, to decide the question whether the impugned orders are final orders within the meaning of Article 158 of the Constitution.

9. On the question whether the aforesaid orders are final orders within the meaning of the said Article, we may usefully quote a decision of this Court in the case of Khan Bahadur Haji Badi Ahmed Chowdhury v. United Bank of India, Ltd. (P L D 1960 Dacca 750). In that case, the judgment of this Court was delivered by Akbar, J., who referred to an oft‑quoted English decision, namely, the case of Salman v. Warner ((1891) 1 Q B D 734). The following observation of Lord Esher, M. R., was quoted :‑

"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."

10. From the cases cited before us it seems that the test is do the impugned orders finally adjudicate or dispose of all the rights of the parties in suits or proceedings in question ? If the suits or proceedings are still alive, then the orders will not be final' orders although they may finally dispose of an important point raised by the parties.

11. It would not serve any useful purpose to cite the various decisions on this point, and such decisions are numerous. We would only like to quote the observations of Sir George Lowndes in delivering the judgment of the Judicial Committee of the Privy Council in the case of Abdul Rahman v. D. K. Cassim & Sons (60 I A 76 = A I R 1933 P C 58). In that case, referring to the judgment of Lord Cave in Ramchand Manjimal's case (47 I A 124 = A I R 1920 P C 86), Sir George Lowndes observed as follows: "Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases, decided in the English Courts, that the finality is whether the order 'finally disposes of the rights of the parties', and he held the order then under appeal did not finally dispose of those rights but left them 'to be determined by the Courts in the ordinary way'. It should be noted that the Appellate Court in India was of opinion that the order it had made `went to the root of the suit, namely, the jurisdiction of the Court to entertain it', and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still alive, a suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109 (a) of the Code. Sir George Lowndes further added :‑-- "In their Lordships' opinion it is impossible to distinguish the present case from that upon which Lord Cave pronounced. The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive, and provided for its trial in the ordinary way."

12. In the present applications we are concerned with execution proceedings. Applying the above test, we have to ask ourselves this question : Are the proceedings, namely, the execution proceedings still alive ? The orders passed by this Court are orders passed by way of refusing to interfere with certain orders passed by the Executing Court. The execution proceedings still continue to be alive in spite of the orders passed by this Court. We, therefore, think that the orders passed by this Court, against which these appeals are sought to be preferred to the Supreme Court, do not amount to final orders within the meaning of Article 158 of the Constitution.

13. In these circumstances, leave sought for is refused and these applications are rejected. We, however, make no orders as to costs.

14. Let the records, which have come up to this Court, be sent back to the Executing Court as expeditiously as possible. HASAN, J.‑I agree. K. B. A. Petition dismissed.