1. This appeal arises out of an order passed by the Civil Judge, Udipi, on I. A. No. I in Original Suit No. 2 of 1966. The plaintiffs had obtained a preliminary decree for partition and possession of their share in the suit schedule properties. They filed an application (I.A. No. I) for passing a final decree and determination of the income of the suit properties etc. as per the terms of the preliminary decree passed on 31-1-1968. Pursuant to this application, a Commissioner was appointed by the court below to divide the immoveable properties by metes and bounds with reference to the respective shares of the parties. Accordingly, the Commissioner prepared 7 lists and submitted the lists along with his report to the court. Some of the parties including the appellants, filed objections to the Commissioner's report and to the division of properties as contained in the said lists.
The court below, without going into the merits of the case and without applying its mind to the question whether the properties had been divided in proportion to the shares of the parties with reference to their value, passed an order on 20-1-1969 as follows:--
'Lots are cast in open court in the presence of the counsel for the parties by Sri Y. C. S. Hegde. Advocate and the lots allotted or indicated to each of the party are as per list shown against each below.
1. Plaintiff-1. List VII in the Commissioner's report for division of property dated 7-11-1968.
2. Plainliff-2 List II --do--
3. Defendent-1 List VI --do--
4. Defendant-2 List IV --do--
5. Defendant-3 List V --do--
6. Defendant-4 List III --do--
7. Defendant-5 List I --do--'
In pursuance of this order, a decree was drawn up, which reads as follows:--
'This application coming on this day for hearing before me regarding the disputed possession and allotment of share in consideration of the aspect of the claim, thereof this court doth hereby order and decree:--
I. That Lots cast in open court in the presence of the counsels for the perties by Sri Y. C. S. Hegde, Advocate.
II. That as per lots cast, each of the party viz., plaintiffs Land 2 and defendants 1 to 5 be and are hereby allotted to their share, the properties as per lists mentioned against each below:--
1. Plaintiff No. 1 List VII in the Commissioner's report for division of property dated 7-11-1968.
2. Plaintiff No. 2 List II In the Commissioner's report for division of property dated 7-11-1968.
3. Defendant No. 1 List VI --do---
4. Defendant No. 2 List IV --do--
5. Defendant No. 3 List V ---do--
6. Defendant No. 4 List III --do--
7. Defendant No. 5 List I --do--
Given under my hand and the seal of the Court, this 20th day of January 1969.'
It could be gathered from the records that the decree was actually prepared on 13-2-1969, but it has been dated as having been prepared on 20th day of January 1969, which was the date on which the order was passed in conformity with the provisions of Order 20, Rule 18 of the Code of Civil Procedure. It is submitted during the course of the arguments that after the decree was so passed the plaintiffs have been put in possession of the properties allotted to them under the decree. Aggrieved by this decree defendant 2 had filed this appeal.
2. At the hearing of the above appeal, Mr. Holla, the learned counsel appearing for the plaintiffs, raised a preliminary objection and that objection is that no appeal lies in this case. It is urged by him that no appeal could lie against an order passed by the lower court accepting the report of the Commissioner and allotting shares on the basis of that report by drawing lots, as had been done in this case. According to him, the decree in question was not a decree in the first instance and even if we construe it to be a decree, as it had not been engrossed on non-judicial stamp paper, no decree in law exists and hence the appeal is not maintainable. In support of his contention, he relied upon number of decisions. The first case is reported in Satyanandam v. Paramkusam Nammayya : AIR1938Mad307 .
In that case the question was whether a final decree, which had not been engrossed on non-judicial stamp-paper could be executed. Dealing with that question this is what the court observed:--
'It is well settled that a final decree for partition has no existence as a decree until it is engrossed on the proper non-judicial stamp paper; till that is done the suit is pending.'
The court further observed that where a decree in a suit for partition is not engrossed on proper non-judicial stamp paper, there is no valid decree in existence. It therefore held that it could not be given effect to and everything done pursuant to the same was invalid. That was not a case in which question was whether an appeal could be filed against a decree, which is not engrossed on non-judicial stamp paper.
3. The next case relied upon by Mr. Holla is the decision in the Board of Revenue. Madras v. Moideen Rowther, (1955-2 Mad LJ, 635) = (AIR 1956 Mad 207 FB), That was a case which arose on a reference by the Board of Revenue under Section 57 of the Stamp Act and the questions that were referred to were:
'1. Whether the learned Subordinate Judge of South Malabar, on the failure of the parties in this case to furnish the requisite stamps had the power to draw up the decree for partition?
2. Where the learned Subordinate Judge can impound the decree for partition drawn up by him under Section 33 of the Stamp Act?
Dealing with these two questions the court held that the Subordinate Judge was precluded from drawing up a final decree for partition on unstamped paper and if it was so drawn up the court was obviously doing a wrong thing and having committed that mistake the court was wrong in saying that the document should be impounded. This decision is of no assistance as it is beside the point.
4. The question whether an adjudication is a decree or not must be determined with reference to Section 2(2) of the Code of Civil Procedure and not with reference to implications, true or supposed, or with reference to other laws. Section 2(2) defines the expression 'Decree' as follows:
' 'Decree' moans the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to a!l or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144........'
The sub-clauses and the Explanation are not relevant for the purpose of this case. The answer to the question whether the order in question is a decree or not depends upon its contents. The decree extracted above, we , have no doubt, decides finally the rights of parties in respect of those properties which are mentioned in the lists. That fact is not disputed by Mr. Holla. If in substance, the order in a suit is a decree as defined by the Code mere fact that the court which passed the same styles it an order or a decretal order will not make it non-appealable. Prima facie then, if the decision under appeal satisfies all the requirements of the definition of a decree as defined in Section 2(2) of the Code of Civil Procedure determining the rights of the parties in the suit, we should hold that an appeal lies.
5. In this case, the plaintiffs themselves had made an application requesting the court to draw up a final decree. Accordingly, the court allotted shares of immoveable properties in pursuance of the report of the Commissioner and the lots drawn by it. In pursuance of the same, some of the parties have taken possession of the properties allotted to them. The drawing up of a decree was only a formal affair and even if there is some omission, that cannot affect the rights of the parties either by way to file an appeal and for a mistake committed by the court for not drawing up a decree on non-judicial stamp paper, the party should not be visited with the consequences of his appeal not being competent. On the facts of this case, we must hold that the objection is not well founded and the same must be rejected. We, therefore, hold that the appeal lies, and overrule the preliminary objection.
6. On the facts we are satisfied that the method adopted by the court below in drawing lots without concurrence of all the parties and allotting shares without going into the objections, was not proper. We therefore, set aside the order and decree and send back the records to the lower court with a direction that the lower court may pass a final decree in accordance with law. We are told that some of the parties have taken possession of their shares in pursuance of the decree, which is now set aside We direct that they should continue in possession of the properties until and subject to the final decree to be passed by the Court below.
7. In the result, the appeal is allowed and the case is remanded to the lower court with a direction to dispose of the same in accordance with law. No costs.