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Sidhanath Dhonddev Garud Vs. Ganesh Govind Garud - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Extraordinary Application No. 50 of 1912
Judge
Reported in(1912)14BOMLR916; 17Ind.Cas.637
AppellantSidhanath Dhonddev Garud
RespondentGanesh Govind Garud
Excerpt:
.....section 115 - issues relating to misjoinder, limitation and jurisdiction-drawing up preliminary decree on decision of those issues-material irregularity in not drawing it up.;a subordinate judge in trying a suit for mesne profits, first gave his decision of some issues which related to misjoinder, limitation and jurisdiction; and directed the parties to adduce evidence on the remaining issues, which were issues of accounts. he was then asked to draw up a preliminary decree in accordance with his findings, but he declined to do so.;that the subordinate judge in declining to draw up a preliminary decree committed a material irregularity in the exercise of his jurisdiction, inasmuch as the decision of those issues determined the rights of the parties regarding some matters in controversy..........in the issues dealt with in its judgment of the 7th of february 1912, the defendant undertaking to prefer his appeal, if any, to this court within one month from the drawing up of such decree.6. costs costs in the appeal if preferred.7. if no appeal is preferred, costs costs in the cause.
Judgment:

Basil Scott, Kt., C.J.

1. In this case the Subordinate Judge has given a decision upon six issues in the case, one of them being an issue of misjoinder, another limitation, and the third of jurisdiction, and after finding on these issues directed that the parties should be allowed to adduce evidence on the remaining issues, which were issues of accounts. He was then asked to draw up a preliminary decree in accordance with his findings. This, however, he declined to do.

2. We are of opinion that in so declining he committed a material irregularity in the exercise of his jurisdiction. The decision of the issues to which I have referred conclusively determined the rights of parties regarding some matters in controversy so far as his Court was concerned, the decision on each of those issues, therefore, was sufficient to constitute a preliminary decree.

3. The defendant has a right to appeal from a decision of the Court amounting to a preliminary decree, but he can only appeal if the decree is existent in a formal shape. This we decided in Bai Divali v. Vishnav Manordas (1909) 11 Bom. L.R. 1326. It is the duty of the Court where it is applied to after the passing of a preliminary decree to have the decree drawn up so as to enable the party aggrieved to appeal.

4. It is suggested on behalf of the plaintiff that this application is made solely for the purpose of delay, but the defendant in order to rebut that suggestion is willing to be put on terms with regard to the time within which he shall file his appeal from the preliminary decree.

5. We order the lower Court forthwith to draw up a preliminary decree upon the questions decided in the issues dealt with in its judgment of the 7th of February 1912, the defendant undertaking to prefer his appeal, if any, to this Court within one month from the drawing up of such decree.

6. Costs costs in the appeal if preferred.

7. If no appeal is preferred, costs costs in the cause.


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