No 2351 of 1970
Application for stay by notice of motion and Civil Appeal No 1196 of 1970
Appeal from the judgment and order dated October 29 1969 of the Orissa High Court in Misc
Appeal No 28 of 1967
R K Agarwal for the appellants
Santosh Chatterjee and G section Chatterjee for the respondent
The Order of the Court was delivered by Hidayatullah CJ
The appellants before us who come by way of certificate from the High Court seek stay of a suit which has been restored to file by the High Court
At the very start we put to the counsel how certificate could have been granted in this case when the judgment and order of the High Court were not final
The counsel brought to our notice the case of Ramesh and another vs Gendalal Motilal Ratni and others1 and says that his case is covered by this ruling
This was a case in which the only question to be considered was whether article 133 of the Constitution was applicable in the two case  decided when the claim in the original suit or appeal to this Court was above Rs 20000 
This particular question was not before the court at all
Indeed them Constitution contemplates the filing of an appeal by certificate only 1  406 against a judgment decree or final order of the High Court it does not contemplate bringing an appeal in a suit which is still a live suit and in which further proceedings are to be taken
This has been the consistent view not only of this Court but also of the Privy Council Me leading case from the Privy Council is V M Abdul Rahman and others vs V D K Cassim and Sons and another1
There is a catena of cases in the High Courts and also in this Court that the judgment decree or order from which appeal is brought to this Court must put an end to the litigation between the parties
This was reaffirmed in Ms Jethanand and Sons vs The State of Uttar Pradesh 2  approving the view of the Privy Council referred to
Indeed we could cite on this aspect of the case quite a large number of precedents from various courts in India
In the present matter the suit was decreed in the absence of the defendant who applied to have the decree set aside and gave reasons for it
The trial court did not accede to the prayer but the High Court held that the matter was governed by O 9 r 9 of the Code of Civil Procedure and that there were valid reasons for setting aside the ex parte decree
As a result of the setting aside of the decree the suit is very much alive today and this cannot be treated as a final adjudication of the suit itself
The certificate granted by the High Court in such circumstances was premature and was not competent
We accordingly set aside the certificate and dismiss the appeal
There shall be no order as to costs
YP Appeal dismissed
1 1933 L R 60 IA 76


Summary:
The High Court granted certificate for leave to appeal to this Court in a case where it set aside the ex parte decree in the suit and restored the suit to the Me of the trial court
HELD The certificate granted by the High Court was premature and was not competent
As a result of the setting aside of the decree the suit was very much alive and it could not be treated as a final adjudication of the suit itself
The Constitution contemplates the filing of an appeal by certificate only against a judgment decree of final order of the High Court
It does not contemplate bringing an appeal in a suit which is still a live suit and in which further proceedings are to be taken
405 H Ramesh  Anr
vs Gendalal Motilal Ratni  Ors
AIR  V M Abdul Rahman  Ors
vs D K Cassim Sons vs The State of Uttar Pradesh   referred to