Roy, J. - (1.) THIS is an application by Smt. Bhagwati Kunwar, who was one of the Defendants to the suit, under Article 133(1)(a) of the Constitution of India praying for a certificate to the effect that the amount or value of the subject -matter of the dispute in the court of first instance and still in dispute on appeal was and is, not less than twenty thousand rupees and that the decision of this Court is one of reversal or modification and has not affirmed the decision of the court of first instance.
(2.) A preliminary objection has been taken by Mr. Jagdish Swarup appearing for the other side to the effect that the order of this Court being one of remand, it cannot be treated as a "anal order" or "judgment" to which Article 133(1)(a) of the Constitution would apply. Mr. Jagdish Swarup, however, concedes that if this submission is not accepted then the application would fulfil the requirements of Article 133(1)(a) and the necessary certificate could be granted. The suit was one for possession over certain share in property specified in the plaint and to recover certain amount of mesne profits upon proper accounting. As many as twenty issues were involved in the case; and the principal issues related to certain wills, as also to the question as to whether certain persons acquired vested and heritable and transmittable interest. The trial court gave finding in regard to issues Nos. 2, 3, 4, 5 (a) and (b), 6(a), (b) and (c), 11(a) and (b) and 13 and dismissed the suit. The Plaintiffs preferred First Appeal No. 167 of 1950 in this Court against that decision. The appeal was disposed of by a Bench of this Court on 13 -3 -1959. The Bench set aside the findings of the trial court on issues Nos. 4, 5 (b) and 6 (b) and (c) and held that Jowhari Mai and Kalyan Das acquired a vested and transmittable interest in the property of Hulas Rai to the extent of half and half under the will of 1 -12 -1872; that the interest of neither ended with their respective deaths; that by the will of Jowhari Mai Smt. Tulsa Kumar acquired an interest in the vested interest which had been created in Jowhari Mai -also; that Jowhari Mai passed his interest in that vested interest under his will dated 1 -3 -1884; that the Plaintiffs acquired an interest under Tulsa Kuer's will along wit a Raghubir; that the Plaintiffs' share through Durga Kuer would be 1/6th of the entire vested interest; that no finding was required in regard to the interest of the Plaintiffs or Raghubir in the 1/6th interest of Smt. Bhoi because she was not made a party to the suit and there was no cause of action pleaded in regard to her interest as Smt. Bhoi was alive when the suit was instituted and she died during the pendency of the suit. The consequence of the findings reached by the Bench of this Court was that the appeal was allowed and the decree of the trial court was set aside and the case was sent back to that court fir the trial of the other issues, not already disposed of by it, according to law. The question which has therefore to be considered in this case is whether the decision of the Bench amounts to a "judgment" or "final order" so as to attract the provisions of Article 133(1)(a) of the' Constitution. There is a Privy Council decision in Saiyid Muzhar Hossein v. Must. Bodha Bibi and Anr., ILR 17 All 112, which in our opinion helps the Petitioner. There it was held that an order comprising the decision of the Appellate High Court upon a cardinal issue in a suit, that issue being one that goes to the foundation of the suit and one that can never, while this decision stands, be disputed again, is a final decree for the purposes of appeal notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit. It was observed that the appellate court had reversed, once for all, the decision of the first court upon an issue as to the making and validity of a will, which issue governed the whole case and therefore, the mere fact that the suit has been remanded will not disentitle the aggrieved party from getting a certificate. We are, therefore, of opinion that the decision of the Bench amounts to a "judgment" or to a "final order" and that Article 133(1)(a) of the Constitution helps the Petitioner.
(3.) WE , therefore, allow the application and grant the Petitioner a certificate under Article 133(1)(a) of the Constitution to the effect that the decision dated 13 -3 -1959 in First Appeal No. 167 of 1950 is not one of affirmance and that the amount or value of the subject -matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees. The Petitioner shall be entitled to his costs from the Plaintiffs opposite parties.;