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TMI Blog1953 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and 133 of the Constitution. There have been some decisions which lay down that appeal does not lie in such matters and the decision is not a "judgment, decree or final order". See Tobacco Manufacturers (India) Ltd. v. The State(2), per Sarjoo Prasad and Rai, JJ.; Shearer, J., contra, and Pahlad Rai Co. v. Commissioner of Income-tax(3). Since the matter is important we think that this question should be authoritatively settled by a Full Bench. Let the papers be laid before my Lord the Chief Justice with a recommendation that a Full Bench be constituted to decide this application. In accordance with the abovesaid order of reference the case came up for hearing before the Full Bench and the following judgments were delivered: R.S. Dabir and R.M. Hajarnavis, for the assessees. T.P. Naik and W.K. Sheorey, for the State. (1) [1952] 3 S.T.C. 343. (3) [1952] 21 I.T.R. 523. (2) A.I.R. 1951 Pat. 29; 2 S.T.C. 73 (F.B.). HIDAYATULLAH, J.-This is an application for leave to appeal to the Supreme Court against the decision of Choudhuri, J., and myself in Miscellaneous Civil Case No. 258 of 1951, decided on the 25th April, 1952, on a reference from the Board of Revenue, Madhya Pradesh. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 S.T.C. 343. "judgment, decree or final order" for reasons to be given hereafter. In my opinion, the argument of the applicant that the appeal lies under Article 133 is not sound. 7.. Indeed, the learned counsel for the applicant did not choose to state his case on this ground too strongly but relied rather upon the applicability of Article 132(1) of the Constitution. That Article reads: "(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution." "Explanation.-For the purposes of this Article, the expression 'final order' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case." 8.. The first clause of the Article as reproduced above does seem to suggest as if it was intended that the Supreme Court should entertain appeals against all decisions and in all matters, whether civil, criminal or other, if the High Court certified that the case involved a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar collocation of words in Section 205 of the Government of India Act, 1935. It was then observed by their Lordships that: "If the order appealed from does not amount to a final order, judg- ment or decree, a certificate given by the High Court is ineffectual by itself to attract the operation of Section 205(1) of the Government of India Act. The expression 'final order' has been used in contra-distinction to what is known as 'interlocutory order' and the essential test, to distin- guish the one from the other has been discussed and formulated in several cases decided by the judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in S. Kuppuswami Rao v. The King(2), and the law on the point, so far as this Court is concerned, seems to be well settled. In full agreement with the decisions of the judicial Committee in Ramchand Manjimal v. Goverdhandas Vishindas(3), and Abdul Rahman v. D.K. Cassim Sons(4), and the authorities of the English Courts upon which these pronouncements were based, it has been held by this Court that the test for determining the finality of an order is, whether the Judg- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussamut Bodha Bibi(6). But the word "sufficient" shows that the order must still in its extent, if not of its own force, be sufficient to dispose of the whole case finally. The appellant in each case must show that the order, if in his favour, would finally dispose of the case and that the order involves a substantial question of law as to the interpretation of the Constitution. A certain measure of finality, short of decision of the case, is contemplated even under the explanation. 14. When the Board of Revenue asks for advice on certain points, the opinion of the High Court is binding on the Board but the sufficiency of the High Court's opinion for the final disposal of the case depends upon a variety of circumstances which it is impossible to generalise. The question may be a side issue and may not cover the whole case. Similarly, when the High Court orders the Board to state a case on a certain point (1) A.I.R. 1949 F.C. 1. (4) (1892) 2 Q.B. 613 at p. 617. (2) A.I.R. 1951 S.C. 14; 1 S.T.C. 313. (5) (1891) I.L.R. 15 Bom. 155 (P.C.). (3) (1923) I.L.R. 47 Bom. 724 (P.C.). (6) (1895) I.L.R. 17 All. 112 (P.C.). or points, the decision of the High Court on that point or points ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the judges who heard the case, together with a statement of the grounds upon which those opinions are based. It amounts only to a ruling that a certain deduction claimed by a tax payer to be allowed from the sum for which he has been already assessed to income-tax is not permissible." (Underlined by me). (1) (1923) I.L.R. 47 Bom. 724. 17.. It is impossible to say that these observations were dependent upon the presence of the word "final" qualifying the word "judgment". It is true that the existence of that qualification was held by their Lord- ships to be an additional circumstance tending to the result that there was no appeal against that "judgment." But the force of their Lord- ships' dictum quoted by me is not spent when the word "final" is not to be found. Indeed, such an argument was advanced and not accepted by the Federal Court in S. Kuppuswami Rao v. The King(1). In Mohammad Amin Brothers v. The Dominion of India(2) and Premchand v. The State of Bihar(3) the meaning of the term "judgment" as laid down by the judicial Committee has been accepted without reserve. The same is the view of the Patna High Court, though it was expressed in relation to Article 133 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 20.. In my opinion, the use of the same expression, namely, "Judg- ment, decree or final order" once again in Article 132 clearly imports the decisions above referred to for the interpretation of that phrase. The addition of the words "other proceeding" does not enlarge the ambit of the section beyond what was included in Section 205 of the earlier Constitution. It is not open to me to depart from the view so consis- tently taken. The addition of the words "other proceeding" does not change the meaning of the phrase "judgment, decree or final order" which are still the crucial words. The explanation does render certain orders final even though they are not, but it sets its own limitations. The decision in Election Commission v. Venkat Rao(1) must be read in the light of its own facts. There the position under Articles 133 and 132 is contrasted and the observation merely points out that there is a vital difference between the two Articles. Their Lordships' observations do not infringe on the meaning of the crucial words nor do they contain a full exposition of the explanation to Article 132 applicable to these facts. We have to see if the order would be sufficient to dispose of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the High Court. 3.. The controversy before the High Court in the instant case was whether the transactions in question were sales within the State and whether the provisions of the Act with regard to these sales in question were intra vires. As these questions were decided against the applicant, nothing further remained to be done by the Tribunal. Had they been decided in favour of the applicant, all that the Tribunal would have had to do was to exclude the amounts of such sales, which are already deter- mined, from the computation of the turnover and to calculate the tax payable by the applicant. All this is consequential arithmetical calcula- tion and does not involve any adjudication by the Tribunal. 4.. Unlike Section 66A(2) of the Indian Income-tax Act, there is no provision in the Act for a regular appeal to the Supreme Court. In the absence of such provision the right of appeal must be traced to clause 29 of the Letters Patent or to the Constitution. It cannot be disputed that the judgment was not passed on appeal or in the exercise of original jurisdiction of this Court, or that the proceedings are not civil or criminal proceedings. It is not urged that the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not civil proceedings and the order is not passed in the exercise of the appellate or original jurisdiction, clause 31 had no applica- tion. Having so held, it was not necessary to decide if the order was a final order within the meaning of that clause. The test of finality as laid down by their Lordships is that the order must "by its own force bind or affect the rights of parties." Their Lordships relied on Tata Iron and Steel Company, Limited v. Chief Revenue Authority of Bombay(4) and In re Knight and the Tabernacle Permanent Building Society(5). It is not necessary to decide in the instant case the nature of the order passed under Section 23(3) of the Sales Tax Act (corresponding to Sec- tion 21(3) of the Bihar Act) or Section 66(2) of the Income-tax Act. (1) A.I.R. 1950 S.C. 169. (4) (1923) I.L.R. 47 Bom. 724. (2) A.I.R. 1951 S.C. 14; 1 S.T.C. 313. (5) [1892] 2 Q.B. 613, at p. 617. (3) [1952] 21 I.T.R. 523. 8.. In Tobacco Manufacturers (India) Ltd. v. The State(1) their Lordships were considering the right of appeal against an order under Section 21(3) of the Bihar Sales Tax Act under Section 109 and Section 110 of the Civil Procedure Code, Clause 31 of the Letters P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 951] 2 S.T.C. 73; A.I.R. 1951 Pat. 29. (6) A.I.R. 1920 P.C. 86. (2) (1923) I.L.R. 47 Bom. 724. (7) A.I.R. 1933 P.C. 58. (3) I.L.R. [1952] Nag. 471 (F.B.). (8) (1891) I.L.R. 15 Bom. 155 (P.C.). (4) A.I.R. 1950 F.C. 77. (9) (1895) I.L.R. 17 All. 112 (P.C.). (5) A.I.R. 1949 F.C. 1. rights of the parties on merits but set aside the order of dismissal of the suit under Order 22, Rule 8(2), Civil Procedure Code, on the ground that the claim for damages in suit did not vest in the Official Assignee and directed the lower Court to proceed with the suit. Their Lordships had not considered the case of remand after adjudication of certain rights of the parties on merits. Following these decisions it was held in S. Kuppu- wamy Rao v. The King(1), that a preliminary or interlocutory order in a criminal case is not a judgment or final order. The words "final order" were used in contrast with "interlocutory order". 10.. In Rahimbhoy Habibbhoy's case(2) it was held that a preliminary decree for rendition of accounts is final under Section 595 (109 of the present Code) though it does not finally determine the liability of the defendant because the liability to account which the defendant disputed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 109, clauses (a) and (b), Civil Procedure Code, provide for an appeal as of right, while the right of appeal under clause (c) is in the discretion of the Court, Radhakisan v. Shridhar(2). In the latter case it is not necessary that an order, in order to be appealable, must be a final order. 13.. "Orders" are final or interlocutory. The test of finality is stated in Saiyid Muzhar Hossein's case(3). On a literal reading of Sections 595 and 596 of the Code of 1882 even final orders were not appealable. It must therefore have been thought necessary to amend the wording of these sections. As their Lordships of the Judicial Committee have stated in the above case, the finality must be as to the rights of the parties on merits and not as to the proceedings. In the instant case the decision of the High Court under Section 23 (5) of the Sales Tax Act either way finally decides the rights of the parties and the decision is final so far as the Court and the parties are concerned, though consequential order may have to be passed to give effect to the decision and give relief to the parties. If the applicant succeeds in the Supreme Court, all that the Tribunal would be required to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no provision corresponding to this Article or to Section 205(1) of the Government of India Act, 1935. The right of appeal rested on the Letters Patent in the absence of a specific provision in the relevant Act. The change of language in Section 205(1) and in Article 132(1) is not without significance. The omission of the word "final" as qualifying "judgment" or "decree" is deliberate and has extended the right of appeal when substantial questions regarding interpretation of the Constitution are involved. There is no warrant for the view that the relevant English Acts and the Letters Patents used the word "final" without any significance. The scope of final order has been enlarged by the Explanation to that Article which was designed to supersede the decision of the Federal Court in S. Kuppu- swami Rao v. The King(4). "The object of Article 132 is to secure a speedy determination of Constitutional issues going to the root of a case": Election Commission v. Venkata Rao(3). The decisions in Mohammad Amin Brothers v. Dominion of India(5) and S. Kuppuswami's case(4) are of little assistance in view of this pronouncement of the Supreme Court. 16.. In Tata Iron and Steel Company's case( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the garnishee within sub-section (1)(g) of Section 4 of the Bankruptcy Act, 1883, and the judgment-creditor who has the order cannot issue a bankruptcy notice against the garnishee in respect of it. Garnishee is a person who is garnished or warned. A garnishee order is the order of the Court warning a debtor to pay his debt not to his immediate creditor but to a person who has obtained a final judgment against such creditor and attached the debt. In passing this order, there is no adjudication between the debtor and his creditor. The attaching judgment-creditor cannot proceed to execute his decree against the garnishee: Pannalal v. Mt. Bhagirathibai(7). He has to get the right of his judgment-debtor to recover the debt sold in execution; and the execution purchaser has to institute a suit to enforce the debt and (1) [1877-78] 3 C.P.D. 67. (5) [1891] 1 Q.B.D. 725. (2) [1884] 12 Q.B.D. 342. (6) [1892] 2 Q.B. 613. (3) [1884] 14 Q.B.D. 627. (7) (1924) 20 Nag. L.R. 11. (4) [1890] 25 Q.B.D. 465. obtain "final judgment" and to execute it. This "final judgment" is known as decree in this country. It is in this context that in interpret- ing the words "final judgment" in the aforesaid sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew in Rahimbhoy Habib- bhoy v. C.A. Turner(3). According to the law of this country, the decision dated the 17th November, 1883, was a preliminary decree and (1) [1884] 12 Q.B.D. 342. (3) (1881) I.L.R. 15 Bom. 155. (2) [1884-85] 14 Q.B.D. 627. the ground for that decision was judgment in an action. That judgment must be held to be a final judgment according to the nomenclature in England and in clause 29 of the Letters Patent of this Court. 20.. In Onslow v. Commissioners of Inland Revenue(1), the Court of Appeal was considering whether the decision of the Exchequer Court under Section 19 of the Stamp Act of 1870 was judgment or order within the meaning of Order LVIII, Rules 3 and 15, of the Supreme Court Rules. Determination of this question was necessary for the purpose of limitation and not for deciding the right of appeal. In interpreting these rules in the light of rule 9 of that Order Lord Esher, M.R., stated, "A 'judgment' therefore is a decision obtained in an action, and every other decision is an order." The judgment so defined is equivalent to a decree under the Civil Procedure Code, 1908. Unless we restrict the meaning of "judgment" to that defined in the Civil Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hindas(4) was founded, was not followed. Lord Alverstone, C.J., laid down the following test: "Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an Interlocutory order." In that case the Court passed an order that the question of liability and breach of contract only would be tried and the rest of the case if any would go to the official referee. At the trial the learned judge made an order dismissing the action holding that there was no binding contract between the parties, upon which order judgment was subsequently entered for the defendants. The question was whether this judgment was a final order, and it was answered in the affirmative. In Shubrook v. Tufnell(1), the order of reference required the arbitrator to state the case for the opinion of the Court and further provided that if the opinion of the Court be one way, the case was to be referred back to the arbitrator; if the other way, judgment was to be entered for the defendant with costs. The Court decided in favour of the plaintiff and referred the case back to the arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy about final order loses its force in view of the Explanation to Article 132(1) of the Constitution. 26.. In Exparte County Council of Kent and Council of Dover(4) it was held that the jurisdiction of the High Court upon ques- tions submitted to it under Section 29 of the Local Government Act, 1888, was purely consultative and not judicial because (a) the question was which set of authorities should be charged with particular portions of administration; (b) the question had not arisen and could be decided in the sense of expression of opinion how it ought to be decided when it does arise; (c) the question could be submitted only on the application of the authority specified which may be charged with the administration; (d) there was no obligation on the High Court to hear anybody who might be interested in the decision of the question; (e) the Legislature did not contemplate an actual determination of an existing dispute in which a private right was involved and in which the owner of that private right would have all the ordinary rights of a citizen to maintain it in a Court of law; and (1) (1891) 1 Q.B. 734. (3) (1884) 14 Q.B.D. 627 (2) [1912] 3 K.B. 242. (4) (1891) 1 Q.B.D. 725 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of this Act or of any rule thereunder, the Chief Revenue Authority may either on its own motion or on reference from any Revenue Officer subordinate to it, draw up a (1) (1892) 2 Q.B. 613. (3) (1923) I.L.R. 47 Bom. 724. (2) [1921] 2 A.C. 528 at p. 536. statement of the case and refer it with its own opinion thereon to the High Court and shall so refer any such question on the application of the assessee unless it is satisfied that the application is frivolous or that the reference is unnecessary." "(2) The High Court upon the hearing of any such case shall decide the questions raised thereby and shall deliver a judgment thereon con- taining the grounds on which the decision is founded and shall send to the Revenue Authority by which the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar and the Revenue Authority shall dispose of the case accordingly or if the case arose on reference from any Revenue Officer subordinate to it shall forward a copy of such judgment to such officer who shall dispose of the case conformably to such judgment." It will be noticed that a reference could only be made during the course of any asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions not stated though arising out of the facts of the case: Income-tax Appellate Tribunal, Bombay v. Managing Trustee, Shri Radha Madho Trust, Saugor(2), and Beohar Raghubir Singh v. Commissioner of Income-tax, U.P., C.P., and Berar(3). These decisions are based on Rajendra Narayan v. Commissioner of Income- tax, Bihar and Orissa(4), where the assessee sought to raise before their Lordships a question of law which was not referred for decision and which was not raised in the Court below. It is in this sense that the juris- diction may be said to be advisory. 30.. The Tata Iron and Steel Company's case(5) is thus distinguish- able on two grounds; that clause 39 of the Letters Patent has no applica- tion to a revenue proceeding and that Section 51(1) of the Indian Income-tax Act, 1918, is dissimilar to Section 23(1) of the Sales Tax Act. Three months after this decision the judicial Committee entertainer an appeal against the order of the High Court affirming that of the Revenue Authority declining to state a case under Section 51 of the Act. (Alcock Ashdown and Company's case(6)). It seems anomalous that such an order should be appealable while the final decision of a High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Supreme Court. The principle enunciated by Gwyer, C.J., in Hori Ram Singh v. The Crown(2) that the words "judgment, decree, or final order" should receive no narrow interpretation should be applied to the interpretation of the words "judgment in other proceeding" occurring in Article 132(1). His Lordship observed: "I have no doubt that this Court has jurisdiction in criminal as well as civil cases. It would indeed be very surprising if it were otherwise, since it has been in the criminal courts that many of the great constitu- tional questions of the past have been determined". The word "judgment" has been interpreted differently in dealing with appealability under the Civil Procedure Code, Letters Patent, and the Government of India Act, 1935. There is considerable divergence of judicial opinion as to the meaning of "judgment" in clause 10 of the Letters Patent, as noticed in Asrumati Debi v. Rupendra Deb(3). The minority judgment of Sulaiman, J., in Hori Ram's case(2) is not therefore a safe guide to interpret "judgment" in Article 132(1). The observations were obiter and were not concurred in by Gwyer, C.J., and Varad- achariar, J., who did not accept his narrow interpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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