Desai, C.J. - (1.) This is an application for certificates mentioned in Clauses (a), (b) and (c) of Article 133 (1) of the Constitution. The applicants are decree-holders auction-purchasers. The judgment-debtors, who are the opposite parties, applied under Order 21, Rule 90, Civil Procedure Code, for the setting aside of a sale of their house valued at more than Rs. 20,000/-. They did not give any security as required under proviso (b) to Rule 90 of Order 21. But after the expiry of the period of limitation for filing an objection they applied to the executing Court for dispensing with the security. This Court held that their application for the security being dispensed with was in order. The executing Court thereupon dispensed with the security but subsequently, on an objection by the applicants, it dismissed the objection of the judgment-debtors on the ground that it was not accompanied by security and the application for dispensing with the security had been filed after the expiry of time allowed for filing the objection. Thereupon the judgment-debtors filed an appeal which was allowed by this Court and it is that order of the Court that is sought to be appealed from. This Court held that it was not obligatory upon the judgment-debtors to file an application for dispensing with the security while filing an objection, that the security could be dispensed with before the objection was adjudicated upon and that consequently the security had been validly dispensed with and the objection of the judgment-debtors should have been disposed of on merits. Since the trial Court had not disposed it of on merits this Court by its order remanded the case to the trial Court for decision of the objection, on merits. The position now is that the objection filed by the judgment-debtors is pending before the executing Court.
(2.) Under Article 133(1) an appeal lies to the Supreme Court from a judgment, decree or final order in a civil proceeding of this Court. The order passed by this Court is not a decree or judgment because it does not decide the rights of the parties in the civil proceedings. The "civil proceeding" referred to in Article 133 (1) is not the particular case before the High Court in which it passes the impugned order but the proceeding started in the trial Court and in the course of which the High Court passes the order. There were two proceedings in this case (besides the suit in which the decree was passed), (1) the execution case which is still pending in the executing Court which is hearing the judgment-debtors' objection under Order 21, Rule 90 of the Code of Civil Procedure and (2) the appeal from the order passed by the executing Court rejecting the objection under Order 21, Rule 90. It is the first proceeding that is contemplated by the phrase 'civil proceeding' in Article 133 (1) of the Constitution. The order appealed from must be a judgment, decree or final order of a High Court and must be passed in a, civil proceeding this is the meaning of what is said in the opening words of Article 133 (1) and not that the civil proceeding must be of a High Court. The question, therefore, before us is whether the order passed by this Court in the appeal could be said to be a judgment, decree or final order in the execution case (that is pending before the execution Court) and evidently it must be in the negative. The rights of the parties in the executing Court have not yet been decided; the objection of the judgment-debtors has not yet been heard on merits. The only decision given by this Court through its impugned order is that there was no bar to the entertainment of the judgment-debtors' objection on merits. The executing Court thought that the entertainment of the objection on merits was barred by a certain fact and this Court held that it was not and called upon the executing Court to entertain it on merits. The dispute between the parties in the civil proceeding was whether the sale should be set aside under Order 21, Rule 90, Civil Procedure Code, or not and that matter has not been decided by this Court through its impugned order and is still pending in the executing Court. There is, therefore, not only no judgment or decree but also no final order. A final order within the meaning of Article 133 (1) must be the final order in the civil proceeding and not the final order in the case disposed of by the High Court. Merely because the High Court by its order disposed of fully the appeal before it does not become final order in a civil proceeding; if the civil proceeding remains pending in the trial Court in spite of the order passed by the High Court, it is not the final order in the civil proceeding though it may be the final order in the appeal before the High Court. An appeal is provided from a final order in a civil proceeding and not from a final order in an appeal or revision disposed of by the High Court.
(3.) The view that we take is in consonance with the views of Judicial Committee of the Privy Council, the Federal Court and the Supreme Court. One of the earliest cases to which a reference has been made is Saiyid Muzhar Hossein v. Mt. Bodha Bibi, ILR 17 All 112 (PC), in which the Judicial Committee held that a decision on appeal by a High Court upon a cardinal issue in a suit, for example, an issue that goes to the foundation of the suit, and one that can never, while the decision stands, be disputed again, is a final decree for the purposes of appeal to the Queen in Council, notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit. This is a decision that was relied upon by a Bench of this Court in Smt. Bhagwati Kunwar v. Hargopal, 1960 All LJ 244, but it was subsequently explained away by the Judicial Committee in Abdul Rahman v. Cassim and Sons, AIR 1933 PC 58, which decision was not noticed by the learned Judges, who decided the case of Smt. Bhagwati Kunwar, 1960 Alt LJ 244 (supra). In view of what their Lordships said in Abdul Rahman's case, AIR 1933 PC 58, in regard to the decision in Saiyid Muzhar Hossein's case, ILR 17 All 112 (PC), we need not deal with that case at all.;