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Narayan Balkrishna Kulkarni Vs. Gopal Jiv Ghadi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 138 of 1912
Judge
Reported inAIR1914Bom36(2); (1914)16BOMLR206
AppellantNarayan Balkrishna Kulkarni
RespondentGopal Jiv Ghadi
Excerpt:
civil procedure code (act v of 1905), sections 2, 97, order xxvi, rule 11-preliminary decree-appeal- findings in an account suit-final decree passed after completion of accounts-practice.;in a suit for account under the provisions of the dekkhan agriculturists' relief act, the trial judge investigated certain questions of fact in issue between the parties with reference to the amounts due in respect of different mortgages and different plots of land, and referred the making up of the final mortgage account to a commissioner. the commissioner having made his report, and neither party objecting, the trial judge passed a decree. the defendant appealed against the decree but the lower appellate court rejected the appeal on the ground that the instructions recorded by the judge for the benefit..........account, which, if decided, must have a general effect upon the proceedings in the suit and can be decided preliminary to the investigation of the matters in dispute between the parties upon the merits.5. in the present case what was decided on the 15th of august at the time of the issue of the commission was not any general question of right, such as had been referred to, but merely a number of different points in dispute upon the merits of the case between the parties. the learned judge passed no decree upon the merits. he was waiting for the commissioner to send in his calculation which would form an item in the evidence to be taken into consideration before framing the decree.6. we, therefore, think that the learned judge of the appellate court was in error in dismissing this appeal,.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiffs sued to have an account taken under the provisions of the Dekkhan Agriculturists' Relief Act of all transactions from the commencement in connection with two mortgages of the 20th December 1865 and the 21st December 1865, and to have the amount due determined, and to obtain a decree for redemption.

2. The learned Subordinate Judge on the 30th of August 1910 passed a decree for the plaintiffs for possession of the property, except one survey number, free from incumbrances, the defendants having received profits for twenty-five years after the debt had been paid off. Before passing that decree the learned Judge had investigated certain questions of fact in issue between the parties with reference to the amounts due in respect of different mortgages and different plots of land. Then instead of making up the final mortgage account himself he, as is permissible under the Civil Procedure Code, referred the taking of the account to a Commissioner, The Code provides, Order xxvi, Rule 11, that 'in any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment' and Rule 12(2) provides that ' the proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.' In the present case the work of the Commissioner appears merely to have been the ascertainment of the figures based upon the facts found by the Subordinate Judge, and the figures having been furnished by the Commissioner, and neither party objecting, the Court found the fact to be that the whole debt had been paid out of the profits of the mortgage-property, and passed the decree already referred to.

3. From that decree an appeal was preferred to the First Class Subordinate Judge, with appellate powers, and a preliminary objection was taken that the appeal was time-barred, inasmuch as time ran from the date when the Court issued the commission to the Commissioner to take the account on the ground that the issue of a commission or the instructions which were recorded for the benefit of the Commissioner at the time of the issue of commission constituted a preliminary decree within the definition of Section 2 of the Civil Procedure Code. This preliminary point found favour with the appellate Court and the appeal was accordingly dismissed, because the matters decided by the Subordinate Judge on the question in issue between the parties were decided in fact by the 15th of August when he issued his directions to the Commissioner.

4. The learned Judge of the appellate Court held the decision of the 15th of August to be the formal expression of an adjudication which, so far as regarded the Court of the Subordinate Judge, conclusively determined the rights of the parties with regard to the manner in which accounts should be taken, and was, therefore, a preliminary decree within the meaning of Section 2 of the Code, and as such was appealable. The words 'with' regard to the manner in which accounts should be taken appear to have been selected from a judgment of this Court in Krishnaji v. Maruti : (1910)12BOMLR762 but they were selected without due regard to the question which was before the Court in that case. The question was as to the status of the plaintiff, whether he was entitled to the special rights of the favoured class under the Dekkhan Agriculturists' Relief Act in the matter of demanding accounts from the mortgagee. It was a decision with regard to the general right of the plaintiff and the general liability of the defendant without reference to particular questions of fact which might be in issue between the parties in an investigation of the merits of their particular cases after it had been decided what law was applicable to them. In applying the definition of the Civil Proceduce Code of 1908, Section 2, it will be found that in the reported cases in this Court the rights of the parties in regard to matters in controversy is taken to mean general rights such as rights in relation to status, in relation to jurisdiction, in relation to limitation, in relation to frame of the suit and in relation to liability to account, which, if decided, must have a general effect upon the proceedings in the suit and can be decided preliminary to the investigation of the matters in dispute between the parties upon the merits.

5. In the present case what was decided on the 15th of August at the time of the issue of the commission was not any general question of right, such as had been referred to, but merely a number of different points in dispute upon the merits of the case between the parties. The learned Judge passed no decree upon the merits. He was waiting for the Commissioner to send in his calculation which would form an item in the evidence to be taken into consideration before framing the decree.

6. We, therefore, think that the learned Judge of the appellate Court was in error in dismissing this appeal, for there was nothing in the Code which prevented him from entertaining it inasmuch as there was not a preliminary decree within the meaning of Section 97. We, therefore, set aside the decree and remand the case to the lower appellate Court for disposal on the merits.

7. Costs costs in the appeal.


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