1. ' SAEEDUZZAMAN SIDDIQUI, C.J.---This appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 is filed by the appellants against the order of the learned Single Judge of this Court passed on 16-1-1991.
2. ' By the impugned order the learned Judge granted leave to defend the suit filed by the respondents on condition of furnishing security.
3. ' The office has raised an objection as to the maintainability of the appeal on the ground that the order passed by the Court on 16-1-1991 is an interlocutory order and as such it is not appealable under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979.
4. ' Mr. SA. Samad, learned counsel for the appellants contends before us that the office objection is not sustainable in law as the order passed by the learned Judge on 16-1-1991 is a final order. In so far the rights of the appellants are concerned it is contended by the learned counsel that by passing the order nothing further is to be done by the Court and in default of the appellants in furnishing required security the suit is to be decreed against them. The learned counsel in support of his contention that the order passed by the Court on 16-1-1991 is not an interlocutory order has relied on the following cases:--
(1) Standard Discount Company v. Ostard De La Grange 1877-78 Law Reports, Common Pleas Division page 67, (2) 1903 Vol.I KB Wirral Rural District Council v. Carter page 646 and (3) 1891 Volume I QB Salaman v. Warner and others page 734.
5. ' In the first noted case the order appealed against was an order empowering plaintiff to sign judgment upon specially indorsed writ. A preliminary objection was raised to the maintainability of appeal on the ground that the order being interlocutory it was not appealable. The Court reached the conclusion in the case that the order appealed against was an interlocutory order and the following reasons were given in support of the conclusion by Brett L.J:- "My reason for so holding is, that the order is not the last step which must be taken in order to fix the status of the parties with respect to .The matter in dispute; it is in itself ineffectual, and until a further proceeding has been taken, the plaintiffs cannot recover the debt sued for. Another step must be taken before the status of the parties can be fixed, and that step is the entry of the judgment. The order was not the final step in the action, and therefore it is interlocutory."
6. ' Cotton, L.J. Also reached the conclusion that the order appealed against in that case was an interlocutory order and he made the following observations in support of his conclusion:- "Without using an exhaustive definition, it may be laid down that an order is interlocutory which directs how an action is to proceed, and the order before us is exactly of that kind. The Rules of the Supreme Court, Order XIV, Rule 1, allow a plaintiff, so soon as the defendant has appeared to a specially indorsed writ, to apply to a master or a judge and to obtain an order, which will prevent the action from going through its ordinary course, and will give the plaintiff liberty at once to sign judgment without taking the usual steps, the order, however, relates to the procedure, and therefore, is only interlocutory."
7. The above-quoted observations in the above case in our opinion go against the appellants in present case as the order appealed against only directed the appellants to furnish surety in order to defend the suit. It is not disputed by the learned counsel that if the surety would have been furnished by the appellants, they would have been entitled to defend the suit and suit would have proceeded.
8. ' In the second case an order was made in an action which was brought to recover damages for breach of contract. In which the questions of liability and breach of contract only were to be tried and the rest of the case if any was to go to Official Referee. At the trial the Judge held that there was no binding contract between the parties and made an order dismissing the action from which order the plaintiff appealed. A preliminary objection was raised in this case also to the maintainability of the appeal on the ground that it is only a interlocutory order but it was overruled by the Court and it was held to be a final order. From the facts as stated in the case it is quite clear that as a result of the finding by the learned Judge at the trial that there was no binding contract between the parties the whole controversy before the Court came to end, and therefore, it was rightly held that the order was a final order. In the case before us the order appealed against relates to the right of the plaintiffs/appellants to defend the suit on condition. It does not terminate the controversy before the Court until such time the suit is decreed or dismissed as the case may be. Therefore, this case also is of no assistance to the learned counsel for the appellants. The last case relied upon by the learned counsel is Salaman v. Warner and others 1891 Volume-I.QB page
734. In this case also an order dismissing the action made upon the hearing of a point of law raised by the pleadings before the trial under Order XXV, Rules 2 and 3 was held to be not a final order within the meaning of Order LVIII, Rule 3. The Court interpreted the final order in the case as one which is made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Applying the test laid down in Salaman's case, it is quite clear that it cannot be said that in whatever manner the order appealed against stands, it will have an effect to determine the matter in litigation. It is not disputed by the learned counsel for the appellants before us that in case the appellants would have furnished the surety, they would have the right of defending the suit before learned Single Judge. It is, therefore, clear that in the event of compliance of the impugned order the proceedings in this case would not come to an end but would be proceeded further to consider the defence of the appellants/defendants in the case. In the light of the above discussion, we are in no doubt that the order appealed against is an interlocutory order within the meaning of the provisions of section 12 and as such the appeal against such an order is not competent. The office objection is upheld and the appeal is dismissed as not maintainable.