Case: Venkata Reddi And Others Vs. Pothi Reddi

in these terms :"Upon hearing the solicitors for the petitioner I do order that the order herein dated July 11 1928 be varied and that (the debtor) the co-respondent do within seven days from the service of this order pay to Messrs. H. L. Lumley and Co., of 36 Piccadilly W. 1., the solicitors of the petitioner, the sum of L67 1s. 9d. being the amount of the petitioners taxed costs as taxed and certified by one of the registrars of this Division, the said solicitors undertaking to lodge in Court any sums recovered under this order."Pursuant to this order the solicitors gave an undertaking required by the court to the registrar on October 26. On November 5, the decree nisi was made absolute. On January 2, 1929, a bankruptcy notice was issued by the solicitors against the debtor for payment to them of the amount of L67 1s. 9d. The correspondent did not comply with the bankruptcy notice and accordingly on January 27, the solicitors presented a bankruptcy petition against him. Overruling the objection by the correspondent, that is, the debtor that the bankruptcy notice was bad on, amongst other things, the ground that the second order made by the President of the Divorce Division was not a final order within sub-s. 1(g) of S. 1 of the Bankruptcy Act, 1914, the registrar made a receiving order. In appeal it was contended that the receiving order was wrong because the solicitors were not the creditors of the debtor and also because the order for payment of the costs to them was not a final order. While upholding the latter contention Lord Hanworth, M. R., said what has been quoted above and relied upon by the High court. Upon the particular facts of the case the order was clearly not a final order and in making the observations quoted above the Master of Rolls did not formulate a test for determining what could be regarded as a final order in every kind of case. The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents.9. Apart from this, the short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment debtor against whom the decree is passed does not pay the amount voluntarily execution proceedings will have to be taken for recovering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High courts view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them. We may, however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao v. Mutvala Ammanna, C. A. No. 634 of 1957 D/- 29-3-1961 (SC), in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the fathers insolvency the Official Receiver was incompetent to sell the sons interest in the Joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate Judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High court. Before the decision of the suits after remand, the Amending Act XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High court on the point was a final order within the meaning of the proviso. The District Judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The High Court reversed the decision of the District .Judge but this court held that the orders of remand made by the Subordinate Judge and upheld by the High Court were interlocutory orders as also were the orders of the High Court in the appeals preferred before it and as such could be challenged in the appeal preferred before this Court against the decision of the High Court in the appeal against the final decree in the suit. In the case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf. (Sic.)

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The new provision makes it clear that the law is and has always been that upon the fathers insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second apt peal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word decision even in its popular sense means a concluded opinion (see Shrouds Judicial Dictionary 3rd Ed. Vol. I, p. 743.) Where therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observedmere declaration of the rights of the plaintiff by the preliminary decree, would in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not becomeis not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Ss. 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stagesand though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing thatthe case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf.