INDO SWISS TRADING CO., LTD. Vs. HEMENDRA LAL ROY

JUDGEMENT

(1.) This is an application for leave to appeal from an order of this Court in a restitution proceeding. The order was made in the following circumstances: On Aug. 20, 1935, there was an order by a Single Judge of this Court for the winding up of the Giridih Electric Supply Co., but when the Official Liquidator tried to take possession of assets of the company, there was resistance on behalf of the respondents Nos. 1 to 3 whereupon the Official Liquidator applied to this Court for an order under Sec. 185 of the Companies Act directing that he should be put in possession of the undertaking. On Jan. 5, 1940, the learned Judge ordered the respondents to deliver possession of the assets and property of the company to the Official Liquidator and the possession of the properties was subsequently delivered to him in accordance with that order. The respondents then preferred an appeal against the order of the learned Judge. This appeal succeeded, the Appellate Court holding that the application under Sec. 185 of the Companies Act was not maintainable and "the Official Liquidator must proceed by way of a regular suit and not by way of these summary proceedings." Thereafter, the respondents made an application to the learned Judge, who deals with cases under the Company Law, for an order for restitution, but that application was disallowed by him. The respondents then preferred an appeal and that appeal has been allowed and the order of the learned Company Law Judge has been set aside. The effective part of the order of the Appellate Court against which the applicants propose to appeal runs as follows:-

(2.) In this view the order now under appeal is opposed to law and must be set aside. In the circumstances restitution must be allowed but subject to this condition which is necessary to impose for the ends of justice that the delivery of possession to the appellants will be postponed, for three months from this date to enable the respondent to bring a suit, if so advised, and obtain such relief as may be open to him in law."

(3.) The first question to be determined by us is whether the order against which the applicants propose to appeal to His Majesty in Council is a final judgment or order in the sense in which these expressions have been used in para. 31 of the Letters Patent of this High Court. In one sense, it is a final order because the restitution proceedings are now closed and restitution has been ordered, but the Judicial Committee of the Privy Council have considered the meaning of the expression "final order" in several cases and they have laid down the test that the final order must be one which finally determines the rights of the parties and, therefore, an order cannot be said to be final unless it finally disposes of the rights of the parties: see Ramchand Munjimal Vs. Goverdhandas Vishindas, (1920) 47 I.A. 124 : (1920) 56 I.C. 302 : (1920) A.I.R. 1920 P.C. 86 (PC) : (1920) 24 C.W.N. 721 : (1920) 22 Bom. L.R. 606 (Bom) : (1920) 47 Cal. 918 (Cal) and Abdul Rahman Vs. D. K. Cassim & Sons, (1933) 60 I.A. 76 : (1933) 142 I.C. 328 : (1933) A.I.R. 1933 P.C. 58 (PC) : (1933) 37 C.W.N. 405 . In the present case, the restitution order was passed in a summary proceeding and the rights of the parties have not been finally determined thereby. The order of this Court upon which the restitution proceedings were started clearly states that the rights of the parties could not be decided in a summary proceeding and could be decided only by means of a suit. A suit, we understand, has been instituted and the final rights of the parties to the properties can be determined only in that suit. In this view, though the question before us appears at the first sight to be not easy, we are inclined to hold that the order against which the appellants propose to appeal is not a final order or judgment. In these circumstances, leave to appeal is refused, and the application is dismissed with costs. Hearing fee one gold mohur. Application dismissed.