Imam, Ag. C.J.

1. This is an application for a certificate under Article 133 of the Constitution of India that the case fulfills the requirements of the said Article and is otherwise a fit case for appeal to the Supreme Court. It is unnecessary to state the facts which are to be found in the order of this Court. For the purpose of the present application, however, it is sufficient to state that in an execution proceeding in the court of the Subordinate Judge at Hazaribagh an objection was taken that the proceedings in execution could no longer proceed in view of the provisions of Section 4(d) of the Bihar Land Reforms Act. The Subordinate Judge found in favour of the objection and ordered the dropping of the execution proceedings.

Against his order there was an appeal to this Court and it was held here that the provisions of Section 4 (d) of the Land Reforms Act did not stand in the way of the execution proceedings having regard to the facts and the circumstances appearing in the case. It was further held by this court that the objection that Section 4 (d) of the Land Reforms Act stood in the way of the continuance of the execution proceedings could not be raised on the ground of constructive res judicata, having regard to the order of the District Judge of Patna, dated the 6th of December 1952, declaring that the provisions of Section 4 (d) of the Land Reforms Act was not a bar to the execution, proceedings. This Court accordingly held that Raghubir Saran Rastogi, appellant, was entitled to execute the mortgage decree by attaching the amount of Rs. 83,000/-, being the compensation money paid by the Central Government for the four villages of Mahal Gaddi Masnodih, and set aside the order of the Subordinate Judge dated the 8th of December, 1952, by which he held that the execution proceedings could not proceed in view of the provisions of Section 4 (d) of the Land Reforms Act.

2. There can be no question that the value of the subject matter of the dispute in the court of first instance and still in dispute in the appeal is not less than Rs. 20,000/-. There can also be no question that the order of this Court in the appeal was an order of reversal. The main consideration which arises in this case is as to whether the order of this Court is a final order. In Article 133 of the Constitution, it is provided that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding if the High Court grants the requisite certificate. The order of this Court in the appeal was certainly not a decree; it certainly was a judgment and an order.

3. As to what is the meaning of the words "judgment" and "decree" was considered by the Federal Court in -- Kuppuswami Rao v. The King : AIR 1949 FC 1 [] (A), and the decision of the Federal Court as expressed by Kania, C. J. was in the following words:

"In India, for civil suits, the words judgment and decree are defined in Section 2, Civil Procedure Code, 1908. A judgment means the statement given by the Judge of the grounds of a decree or order passed by the Court. A decree is defined as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

As a judgment is only the grounds for an order, it is not the order, and this distinction is maintained by omitting the word judgment from Section 109, Civil Procedure Code, which deals with the right of appeal to the Judicial Committee from the High Court. In that section a right of appeal is given against the decree or final order only. The definitions given in the Code are, however, for the purposes of the Code only in our opinion, the decisions of the Courts in India show that the word judgment, as in England, means the determination of the rights of the parties in the matter brought before the Court."

4. The effect of the decision of this Court was to keep the execution proceedings alive and in those proceedings the rights of the parties have yet to be finally determined. The matter before the court of first instance was a proceeding for the execution of a decree. In execution proceedings various objections can be taken having regard to the particular circumstances of a case. In the present case an objection was taken that the execution proceedings could no longer proceed in view of the provisions of Section 4 (d) of the Land Reforms Act. The executing court thought that the objection was a valid one and dropped the execution proceedings. This Court, however, held that the objection was not a valid one, having regard to the interpretation given to the various provisions of the Land Reforms Act and also because the objection was concluded by the application of the principle of constructive res Judicata. Although a vital issue was determined by this Court, the decision of this Court did not finally determine the rights of the parties in the execution proceedings. Although there was no specific order of remand made by this Court, the effect of the decision was to keep alive the execution proceedings because the order of the Subordinate Judge dropping the execution proceedings was set aside. There is, therefore, no judgment of this Court determining the rights of the parties in the matter brought before the Court, nor is there a final order to that effect.

In the case of -- Gaya Electric Supply Co. Ltd. v. State of Bihar AIR 1951 Pat 619 [LQ/PatHC/1951/69] (B) various decisions in England and in India were reviewed in which it has been decided as to what is the meaning of the expression "final order". In -- Salaman v. Warner (1891) 1 QBD 734 (C) Lord Esher M. R. dealing with the meaning of the expression "final order" observed:

"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."

These observations of Lord Esher amply cover the present case, because on the objection raised the decision of the Subordinate Judge finally disposed of the matter, but the decision of this Court to the contrary allowed the execution proceedings to continue.

In the case of -- Abdul Rahman v. D. K. Cassim and sons : AIR 1933 PC 58 [LQ/PC/1932/95] (D). Sir George Lowndes. expressing the opinion of the Judicial Committee referred to the observations of Lord Cave in -- Firm Ramchand Manjimal v. Firm Goverdhandas Vishindas Ratanchand AIR 1920 PC 86 (E) and observed:

"The objection was upheld and the appeals were dismissed. Lord Cave in delivering the judgment of the Board laid down, as the result of an examination, of certain cases decided in the English courts, that the test of finality is whether the order finally disposes of the rights of the parties", and he held that the order then under appeal did not finally dispose of those rights, but left them to be determined by the courts in the ordinary way. It should be noted that the appellate court in India was of opinion that the order it had made went to the root of the suit, namely, the jurisdiction of the court to entertain it, and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under Section 109(a) of the Code. Their Lordships would only add that the enforcement of this principle involves no practical hardship, inasmuch as, in a proper case, it is always open to the appellate court to give a special certificate under Section 109(c). It was pointed out in argument that there is some divergence in the views expressed in the English cases upon which the judgment in --Ramchand Manjimals case (E) founds; that no doubt is so, but the rule deduced for guidance under the Indian Act Is clear and unambiguous and must, their Lordships think, be decisive in all cases where the question is whether an order is appealable to His Majesty in Council under the provisions of the section in question."

The view expressed by Sir George Lowndes has been consistently followed in India. Sir George Lowndes did not regard a decision as to whether the point raised went to the root of the suit, namely, the jurisdiction of the court to entertain it, as sufficient, and he thought that the finality must be a finality in relation to the suit. In the present suit the finality of the decision of this Court must be considered in relation to the execution proceedings. As the decision of this Court did not put an end to those proceedings, it could not be said that the decision was final in relation to the execution proceedings. After the decision, of this Court the execution proceedings are still live proceedings in which the rights of the parties have still to be determined.

In : AIR 1949 PC 1 [LQ/PC/1948/59] (A) Kania, C. J. relied on the observations of Sir George Lowndes in holding that to constitute a final order it was not sufficient to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. In my opinion, the decision of this Court was not a final order, nor was it a judgment which determined the rights of the par-ties in the matter brought before the Court.

5. It was, however, argued that the expression "final order" is also to be found in Article 132 of the Constitution and that the explanation to that Article states that 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. It is, however, to be noticed that the explanation is only for the purposes of the said Article. Article 132 of the Constitution provides for an appeal to the Supreme Court from any judgment, decree or final order of a High Court, whether in a civil, criminal or other proceeding, where the case involves a substantial question of law as to the interpretation of the Constitution. I do not think that the explanation to Article 132 stating as to what the expression "final order" means can be applied to the provisions of Article 133. The words "judgment, decree or final order" in Article 133 of the Constitution must be construed in the same manner as they were done in : AIR 1949 FC 1 [] (A) and the expression "final order" must be construed in the same manner as was done by Lord Cave and Sir George Lowndes.

6. It was next urged that this was a lit case in which a certificate for leave to appeal to the Supreme Court could be granted under Article 133(1)(c) of the Constitution. Although the order of this Court decides an important question of law, I do not think it is possible to grant such a certificate.

7. I would accordingly dismiss the application with costs. Hearing fee Rs. 80/-.

Narayan, J.

8. I agree.