H. CHANDANMULL AND CO., BY PROPRIETOR, C. LAXMICHAND MEHTA Vs. MOHANLAL M. MEHTA AND ORS.
HIGH COURT OF MADRAS
H. Chandanmull And Co., By Proprietor, C. Laxmichand Mehta
Mohanlal M. Mehta And Ors.
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Rajamannar, C.J. -
(1.) THIS is an application for leave to appeal to the Supreme Court of India against the Judgment and order passed by us in - - 'Chandan Mull & Co. v. : AIR1953Mad561 (A): O. S. A. No. 122 of 1951 dismissing it. This appeal arose out of proceedings under the Arbitration Act. On 2 -11 -1950 an 'ex parte' award was passed for a sum of Rs. 21052 -12 -8 with interest and costs in favour of the third respondent herein and against the petitioner. The award was filed into this court in O. P. No. 66 of 1951 which prayed for making the award a rule of court. Notice of filing the award was served on the petitioner on 27 -3 -1951. Under Article 158, Limitation Act, the petitioner had a period of thirty days from the date of service of notice of filing the award to file an application to set aside the award. The petitioner did not file any such application within time but filed an application. No. 2355 of 1951, purporting to be under Section 5, Limitation Act, for excusing the delay in filing the application to set aside the award. That application was dismissed by Krishnaswami Nayudu J. on the ground that Section 5, Limitation Act did not apply. There was an appeal under Clause 15 of the Letters Patent and we dismissed the appeal agreeing with the learned Judge that Section 5, Limitation Act, has no application to proceedings in Court under the Arbitration Act. It is against this decision of ours that the petitioner seeks leave to appeal to the Supreme Court.
(2.) AT the very outset we may mention that the question of law involved in this appeal, in our opinion, is of such general importance that we have no hesitation in certifying that the case is a fit one for appeal to the Supreme Court under Article 133(1)(c) of the Constitution. The only question on which we have felt considerable difficulty is whether our order can be said to be a judgment, decree or final order in a civil proceeding within the meaning of Article 133(1)(c) of the Constitution. There is no direct decision on the point to help us to decide this question. Our attention has been drawn to several decisions of the Privy Council, the Federal court and of several High Courts in India but we have felt not a little difficulty in applying the test laid down by the Privy Council and by the Federal Court to the facts of the present case.
(3.) IN view of the observations in the decision of the Federal Court in - - 'Mohammed Amin Bros v. Dominion of India',, AIR 1950 FC 77 (B), it is difficult to maintain the position that the order now under appeal is a judgment or decree. Mukherjea J. pointed out in that decision that in English Courts the word "judgment" is used in the same sense as a "decree" in the Civil Procedure Code and it means the declaration or final determination of the rights of the parties in the matter brought before the court. It is clear that calling our order "a judgment" would not really be of much assistance in deciding the question which falls for decision because it would nevertheless remain to be considered whether the judgment is an "interlocutory judgment" or "a final judgment". It is only a final judgment that will fall within the category of judgment referred to in Article 133(1) of the Constitution.;
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