Norman Macleod, Kt., C.J.
1. In this case an issue was framed: 'Are defendants or any of them agriculturists ' After considering the evidence which was led before him on that question at great length, the Judge held that defendants were not agriculturists. He then said: 'I must now proceed and frame the remaining issues, and as the case is a complicated one and the pleaders are not ready I put the case down for framing issues on March 1, 1924.
2. It appears, however, that the finding on the issue, ' Whether the defendants or any of them were agriculturists', was recorded in the form of a decree. Against that an appeal was admitted by this Court. On the face of it the case was covered by the decision of this Court in Dattatraya v. Radhabai (1920) 23 Bom. L.R. 92 The learned Judges, who admitted the appeal, appear to have considered it arguable that the decision in Vamanacharya v. Govind : AIR1924Bom33 was opposed to the decision in Dattatraya v. Radhabai.
3. We must, therefore, proceed to consider what was decided in each of those cases. In the first case an issue was raised whether the defendant was an agriculturist. The Judge found that the defendant was an agriculturist, and on the plaintiff's application the Court drew up a preliminary decree in terms of the finding on that issue, and against what he called a preliminary decree he appealed to the District Court. The District Judge came to the conclusion that an appeal properly lay from the decree. The appeal came before Mr. Justice Faweett and myself, when we held that no appeal lay from a finding of the Judge in the trial Court that the defendantwas an agriculturist, and the case would have to go back to the trial Court to continue the hearing from the point at which it was left off. In the course of my judgment I said (p. 98):
The Judge should never accede to an application to draw up in the form of a decree a finding on thequestion whether a party is an agriculturist or not. Undoubtedly that is an issue whichis the first issue to be tried in the case, and a decision may be given on it; but it by no means follows that because that is the first issue tobe tried, therefore it is a preliminary issue on which a decree can be drawn up. The whole case must be decided first before the judgment oan be pronounced. There will then be a judgment deciding the rights of the parties with regard to all or any of the matters in controversy insuit, and then it will rightly be the subject of a decree.
4. In Vamanacharya v. Govind the Court found the plaintiff to he an agriculturist and ordered accounts to be taken of the suit mortgage. No preliminary decree was drawn up, and it was held that therewas no obligation on the unsuccessful party to appeal at that strige. The question before the appellate Court was an entirely different one from the question now before us, It is true that the Court said that the drawing up of a decree or the omission to do so was conclusive on the question whether the Court had in fact pissed a preliminary decree, and apparently the Judges who admitted thisappeal thought that it might b9 argued from those words that provided a decree was drawn up, rightly or wrongly, there was a decree from which an appeal would lie, But in that case the question for decision was whether there had been a preliminary decree when a decree had not been actually drawn up. Mr. Justice Pratt said (p. 836) :-
The finding on the issues as to status and the order of reference to the Commissioner are not a judgment which could be the basis of a decree. A decree involves a conclusive determination of the rights of parties, butit is preliminary when in spite of that conclusive determination the suit is not completely disposedof.
5. Clearly in the mind of Mr. Justice Pratt that was the test, whether there was a decree or not.
6. We think then that there could be no appeal against the finding that defendants were not agriculturists, and the case must go back for the trial to continue from the point at which it was left off It will be open, when there is a proper judgment followed by a decree, for a party dissatisfied with any of the findings of the lower Court to appeal against them, The appeal will be dismissed with costs.
7. I agree.