MODI, J. - (1.) THIS is an application for grant of a certificate for appeal to the Supreme Court against the judgment of a Bench of this Court dated the 14th May, 1965 to which one of us was a party in D. B. Civil Regular First Appeal No. 98 of 1961. THIS application purports to have been made under Arts. 133 (i) (a), (b) and (c) of the Constitution.
(2.) WE may state atonce that so far as the prayer under clauses (b) and (c) of Art. 133 (i) is concerned, it was not pressed before us and, therefore, we shall not say anything about the applicability of these clauses to the present application. The only clause under which the application was argued, and argued strenuously, before us was cl. (a) of Art. 133 (i ). In support of this prayer, it is urged that the subject-matter relating to the suit,out of which this application arises was valued in the Court of first instance of more than Rs. 20,000/- and that the valuation thereof even at the time of the appeal was likewise so. It was further argued that as this Court had dismissed the petitioner's appeal by its judgment in question on the ground of abatement so far as the respondent Ramdan is concerned as his legal representatives had not been brought on the record within the time permitted by law and further on the ground that the appeal against the other respondent Suraj Narain could not be proceeded with in the circumstances of the case, this was not a judgment of affirmance within the meaning of Art. 133, and consequently she was entitled to a certificate for appeal to the Supreme Court as of right. Alternatively, it was argued that even if this Court came to the conclusion that its judgment was one of affirmance, though it was not given on merits of the appeal, a substantial question of law was involved in the decision of this Court against which the present application has been brought and therefore he was entitled to a certificate for appeal also. The application has been opposed by the contesting respondent Suraj Narain on both these grounds. The first question which emerges for consideration in these circumstances is whether the judgment of this Court sought to be appealed against is one of affirmance or not. It has been strongly pressed before us by learned counsel for the petitioner that the judgment in question is not a judgment on the merits of the case, and consequently it could not be said that it is a judgment which affirms the judgment and decree of the court below. In support of this submission, learned counsel placed strong reliance on a Full Bench decision of the Madhya Bharat High Court in Gulabchand Gambhirmal vs. Kudilal Govindram (1 ). The facts of this case were briefly these. The petitioner there had preferred an appeal to a Special Bench of the Madhya Bharat High Court from the judgment and decree of a Division Bench of that Court. That appeal was dismissed on the ground that it was incompetent for the reason that under sec. 25 of the Madhya Bharat High Court of Judicature Act (No. 8 of 1949) no appeal lay from a decree or an order passed by a Division Bench of the High Court before the coming into force of the High Court Act. Aggrieved by this decision the petitioner applied for a certificate to High Court under Art. 133 (1) (a) of the Constitution and it was contended that the requirement as to valuation being fulfilled the judgment of the High Court dismissing the appeal did not affirm the decision of the court immediately below and, therefore, the petitioner was entitled to a certificate for appeal to the Supreme Court without being called upon to show that the proposed appeal involved some substantial question of law. This submission was upheld by the Full Bench and it was held that when an appeal was dismissed on the ground that no appeal lay, it could not possibly be said that the order dismissing the appeal was an order adopting or confirming the decision from which an appeal was sought to be brought. It appears that certain decisions of the Allahabad Flight Court and of the Lahore High Court in Mahadeo Sahai vs. Secretary of State (AIR 1932 All, 312) Beni Rai vs. Ram Lakhanrai (20 All. 367) and Chunilal Tulsiram vs. Aminchand (AIR 1933 Lah. 690) were brought to the notice Court wherein a different view appeared to have been taken. But it was held that all those cases were distinguished on the ground that "in those cases the appeals were competent and the High Court had jurisdiction to entertain them, and the order dismissing the appeal could be regarded as one passed dealing judicially with the matter and holding that the appeal was not supported. " The prayer for grant of certificate to the Supreme Court was also sought to be supported on an alternative ground, namely, that the proposed appeal involved a substantial question of law and this contention was accepted, but with that we are not concerned for the purposes of the controversy before us. We have carefully considered the facts and circumstances of this case and the ratio of its decision, and we have not felt persuaded to agree that it can be accepted as a correct guide for the class of case which we have before us. Bearing in mind the test or tests which were employed by the learned Judges in deciding the case cited above, we are altogether unable to hold that this Court was unable to entertain the appeal which was filed before it by the petitioner or that no appeal lay to it from the decision of the trial court, nor are we convinced that the order of abatement or the further order that the appeal could not be proceeded with under the circumstances was not a judicial order. These factors are, in our opinion, sufficient to distinguish the present case from the case which the Madhya Bharat High Court was called upon to consider. On the other side, our attention has been drawn to a number of cases in which the view has been taken that to fulfil the test of affirmance it is not necessary, as a matter of law, that the decision, which is sought to be questioned, should have been given on the merits of the case and, therefore, if an appeal is dismissed on the ground that the appellant had failed to furnish security as demanded by the court or that the appeal was dismissed because of insufficiency in the amount of Court-fee payable thereon or because the appeal was dismissed for default and therefore in all these cases it has been held that the decision as given was one of affirmance and not of variance. We shall now refer to a few cases which have taken this view. The earliest case to which we should like to refer in this connection is Ram Karan vs. Madhukar Prasad (2 ). It was held in this case that a decree of the High Court dismissing an appeal for default of prosecution is a decree affirming the decision of the court below within the meaning of sec. 110 of the Code of Civil Procedure. We pause here for a moment to point out that there is no difference whatever between the wording of sec. 110 of the Code of Civil Procedure and of Art. 133 of the Constitution so far as the question before us is concerned. The same view was taken in Mahadeo Sahai Vs. Secy. of State (3) and again in Ganesh Prasad Vs. Mt. Makhna (4 ). In Mt. Satto Vs. Amar Singh (5) it was held that a decree of the High Court dismissing an appeal on account of insufficiency of court-fee is one affirming the decree of the first court within the meaning of sec. 110 of the Code of Civil Procedure. The next case to which our attention was invited is Chunilal Tulsiram Vs. Amin Chand (6) which is on all fours with the case before us. The facts there were that during the pendency of the appeal in the High Court one of the respondents died. An application to bring his legal representatives on record was then brought but this was objected to and the whole appeal was dismissed on the ground that the decree under appeal was an indivisible one. Thereafter an application for a certificate to appeal to the Supreme Court was made on the ground that the decree passed by the High Court was not a decree of affirmance and, therefore, the petitioner was entitled to the certificate as a matter of right under sec. 110 of the Code of Civil Procedure. This contention was repelled. The ratio of this decision was that what was laid down in sec. 110 with reference to the requirement of affirmance was that the judgment, decree or final order appealed from must affirm the decision of the court immediately below and that the use of the word "decision" was significant inasmuch as it did not signify that the Court of Appeal should have confirmed the judgment or decree of the court below on the same grounds as prevailed with that Court. It was also pointed out that the phrase used in the material clause was only "decision" and not "a decision on the merits. " It was, therefore, laid down that in order to affirm the decision of the court below within the meaning of the section, it was sufficient for the appellate Court to affirm the decree though the conclusion of affirmance might have been based on entarely different grounds. As against the view to which the Lahore High Court was inclined to come in the case cited above, its attention was invited to the judgment of the Privy Council in Chandri Abdul Majid Vs. Jawahir Lal (AIR 1914 P. C. 66) for the proposition that where an order of His Majesty in Council dismissing an appeal for want of prosecution came to be passed, it could not be held that it dealt with the matter judicially at all and that such a result could not be accepted as an order adopting or confirming the decision appealed from. This case was, however, distinguished and, in our opinion, rightly so because it was not a case of abatement of the appeal as whole which, so far as we can think, would always require a judicial determination by the court before which such a question is brought. The learned Judges of the Lahore High Court further supported the conclusion to which they came by a reference to a later decision of the Privy Council in Abdulla Asghar Ali Vs. Ganesh Das Vig (7 ). The principal question in that case was whether an application for the execution of a decree was barred by time under the provisions of Art. 182 (2) of the Limitation Act, 1908. The decree which was sought to be executed was passed on 17th November, 1920. Both parties appealed to the Court of the Judicial Commissioner in Baluchistan. The matter then came to be referred to arbitration and while it was so pending, the decree-holder died. His widow was substituted for him in his appeal but not in that of the judgment- debtor. On 12th May, 1924 the widow also died and no further substitution was made in either appeal. On 6th August, 1924 an application was made to the appellate Court on behalf of the representatives of the decree-holder that the judgment-debtor's appeal had abated. The judgment-debtor contested this and prayed that the arbitration should proceed and also alternatively urged that in case the Court came to the conclusion that the appeal had abated the same may be set aside. Both appeals were then put up before the Judicial Commissioner who by his order of 18th October, 1924 held that both appeals had abated, and in this view of the matter he refused to send the matter back to the arbitrator. It is in these circumstances that the question arose whether the order of 18th Oct. , 1924 was a final and a judicial order of the appellate Court the advantage whereof could be taken by the respondents in overcoming the plea of limitation, and the attention of their Lordships was, inter alia, invited to their earlier decision in Chandri Abdul Majid Vs. Jawahir Lal (AIR 1944 P. C. 66) to support the contention that the order passed by the Judicial Commissioner was neither final nor judicial. This contention was overruled and it was pointed out that in the case in Chaudri Abdul Majid Vs. Jawahir Lal the appeal to His Majesty in Council had been dismissed for want of prosecution under rule 5 of the Order in Council dated the 13th June, 1853. It was further pointed out that there was no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made therein and that under rule 5 of the Order in Council the appeal stood dismissed without any order. It was further held that in the subsequent case before Their Lordships there was an order of the appellate Court and that that order dealt judicially with the matter of abatement before it. It was also held that that order was final so far as the Court of Judicial Commissioner was concerned and that it was immaterial for this purpose whether the order was right or wrong. In this view of the matter, it was finally held that when an order was judicially made by an appellate Court which had the effect of finally disposing of the appeal, such an order gives a new starting point for the period of limitation prescribed under Art. 182 (2) of the Limitation Act. Their Lordships also pointed that there had been some difference of opinion upon this question in Indian Courts, but they thought that the principle enunciated by them was a sound one. It is thus incontrovertible that an order of abatement is a judicial order and is entirely unlike the kind of order which engaged the attention of the Privy Council in Abdul Majid's case (supra ). There can also be no doubt that this was a final order which had the effect of terminating the appeal once and for all. Now, if an order is a judicial order and also a final order putting an end to the appeal, it seems to us that if it is not an order which sets aside or varies or modifies the decision of the court below, it cannot but be accepted as affirming it. To our mind, no other conclusion is fairly possible, and that being so, we are definitely disposed to hold that the decision of this Court dismissing the appeal in the circumstances mentioned by us above was one of affirmance and no other. This point, therefore, fails and we hold accordingly. Turning next to the alternative argument raised by learned counsel for the petitioner that even if we came to the above conclusion, we should still hold that our decision involves a substantial question and, on this ground also, if not on the first, we should grant a certificate to the petitioner as prayed. The principal facts on which learned counsel relies in this connection are that the two respondents, one of whom died without his legal representatives being brought on the record and the appeal against him abated, had obtained separate money decrees against the petitioner's son Gangadas and when they had proceeded to execute those decrees against certain properties which they allegedly claimed belonged to the said Ganga Das, the petitioner had brought this suit against both of them out of which the present application arises. This suit had been dismissed by the trial court, it having held that the petitioner had no legal right to the properties involved in the suit and against which the respondents were seeking execution to satisfy their money decrees. It was, therefore, contended that if the petitioner's appeal before this Court against the above decision abated as against one of these respondents, it could well proceed against the other respondent who held a separate and independent decree of his own and, therefore, this Court in coming to the conclusion that the entire appeal had abated and that it could not proceed against the remaining respondent also, had fallen into error which involved a substantial question of law within the meaning of Art. 133 of the Constitution. This argument was specifically raised at the time of appeal and was repelled. The two decisions of the Supreme Court, one in State of Punjab Vs. Nathu Ram (8) and the other in Raghunath Keshava Kharkar Vs. Ganesh alias Madhukar Balakrishna Kharkar (9) and on the first of which learned counsel for the petitioner strongly relied and still relies, were fully considered by the Bench which decided the appeal and it is perhaps futile if not preposterous for him to have made a grievance of this in the grounds submitted by him in support of his application for the certificate of appeal to the Supreme Court that the first case had not been even perused or considered by the bench deciding the appeal. The fact is that both these cases were carefully considered and while the Bench came to the conclusion that facts of the second case were distinguishable from those of the case before us, it went on to apply one of the various tests which were laid down by their Lordships in the first case in deciding whether on the death of a correspondent the entire appeal could be proceeded with against the surviving respondent or respondents and it came to the conclusion that if the appeal was allowed to be proceeded with against the surviving respondent, there was clearly a possibility of conflicting judgments arising with respect to the same properties as regards the right of the petitioner thereto who was the plaintiff and that such a possibility could not be allowed to materialise. As we look at the matter, we are unable to hold that this decision involves any substantial question of law. The only other argument which learned counsel for the petitioner raised in this behalf before us is that their Lordships of the Supreme Court in paragraph 7 of the report of their judgment in State of Punjab Vs. Nathu Ram (8) themselves had observed that in cases of appeals from decrees which were not joint in favour of all the respondents, the abatement of the appeal against the deceased respondent could not possibly have a repercussion on the controversy between the appellant and the surviving respondent and that there was no divergence in the Courts about their being able to proceed with such an appeal. It seems to us, with all respect that learned counsel is wholly incorrect when he seeks to bring his case within the ambit of the aforesaid principle. A look at the plaint of the petitioner in this case would clearly show that she claimed a common decree with respect to her title to the properties involved in the suit against both the respondents and she further claimed a joint declaration against both of them that the properties in suit were not liable to attachment and sale in execution of the decrees held by them against her son. In these circumstances, we are altogether unable to hold that in so far as the trial court dismissed the plaintiff's suit it passed a decree and it was that decree that was under appeal before us which could be said to be a separate and independent decree in favour of the two respondents and against her. The decree was, in our view, joint and indivisible in the circumstances of this case, and, if the appeal, which had abated against one of the respondents, was allowed to continue against the remaining one, the possibility of conflicting decrees arising out of the appeal could not be prevented, and if that is a correct conclusion to come to, as we think it is, it is impossible for us to hold that the decision which is sought to be appealed against involves any error of law, let alone a substantial one. In the result this application fails and is hereby dismissed with costs. . ;