Decided on February 15,1952

M.A.JANAKI Appellant


Rajamannar, C.J. - (1.) THE petitioner filed a suit by an originating summons under Order XLV, Rule 4 of the Original Side Rules of this Court for the determination of certain questions relating to deeds of settlement executed by her father. THE suit came on before Krishnaswami Nayudu J. who dismissed it on the ground that the matters in controversy could not be gone into on an originating summons in a summary manner. THE learned Judge therefore referred the plaintiff to a suit, if she was so advised. THE petitioner filed an appeal against this order of the learned Judge (O. S. A. No. 112 of 1950). That appeal was dismissed on 24-11951 for default of appearance in person or by advocate. THE petitioner then filed an application (C. M. P. No. 2733 of 1951) under. Order XLI, Rule 19, Civil P, C., for restoration of the appeal and for re-hearing. This application was dismissed by this Court on 23-4-1951. THE petitioner now seeks leave to appeal M.A. Janaki vs. M.A. Srirangammal (15.02.1952 -MADHC) Page 2 of 2 to the Supreme Court against this last order of this Court in C. M. P. No. 2733 of 1951. THE application is opposed.
(2.) THE relevant provision of law is Article 133 of the Constitution under which an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies that one or other of the conditions mentioned in Clauses (a), (b) and (c) is satisfied and where the decision of this Court affirms the decision of the Court below the appeal involves some substantial question of law. We are of opinion that the order in question is neither a judgment nor a decree nor a final order. It is not a judgment or decree because it was not passed in a suit or appeal. Is it then a final order? In our opinion it is not. It does not deal with the rights of parties. It is a matter of procedure and not an order passed on the merits. THE result of the order in question was only to leave undisturbed our decree and judgment dismissing the petitioner's appeal. Vide -- 'Krishnakant v. Lala Amarnath', AIR 1937 All 566. It is clear that we could not have certified that the petitioner was entitled to appeal to the Supreme Court against the judgment and decree in the main appeal, because that was an affirming judgment and obviously the appeal did not involve any substantial question of law. THE grounds which are now sought to be urged against our later order are all grounds which could have been urged in the appeal against the judgment in the main appeal. If the petitioner as we have just held, was not entitled to leave to appeal to the Supreme Court against the judgment in the appeal, we fail to see how she can be allowed to get the same relief by this indirect method. THE application is, therefore, dismissed with costs.;

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