Prakash Chand Agarwal & Ors Vs.
M/S. Hindustan Steel Ltd.  INSC 193 (15 September 1970)
15/09/1970 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) MITTER, G.K.
CITATION: 1971 AIR 2319 1971 SCR (2) 405
Constitution of India. Art. 133-Grant of
certificate, in a live suit-Whether competent.
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
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. v. Gendalal Motilal Ratni & Ors. A.I.R.
 S.C. 1445, V. M. Abdul Rahman &
Ors. v. D. K. Cassim
Sons v. The State of Uttar Pradesh,  3
S.C.R. 754, referred to.
& CIVIL APPELLATE JURISDICTION: C.M.P.
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. S. Chatterjee, for
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 v.
Gendalal Motilal Ratni and others(1) and says that his, case is covered by this
This was a case in which the only question to
be considered was whether Art. 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. 20,000/-. This particular question was not before the court at
Indeed, them Constitution contemplates the
filing of an appeal by certificate only (1) A.I.R. 1966 S.C. 1445.
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 v. V.
D. K. Cassim and Sons and another(1). 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 M/s. Jethanand and Sons v. 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.
Y.P. Appeal dismissed.
(1) (1933) L. R. 60 I.A. 76.
(2) (1961) 3 S. C. R. 754.