1. This is a reference by the Judge of Benares, made under the following circumstances:
A suit was instituted in the Court of the Munsif of Benares. It is not necessary to describe in detail the nature of the suit, but it is sufficient to say that it related to immoveable property. Upon the statement of the plaintiff's, case, as disclosed in the plaint, the Munsif was of opinion that he had no jurisdiction to entertain the suit, and he made an order returning the plaint, for presentation to the proper Court.
2. Under the Statute, that order of the Munsif was not a decree, but was an order appealable as an order under Section 588, Civil Procedure Code; and under that section an appeal was preferred to the Judge. The Judge, entertaining doubts upon the question of jurisdiction, has made the reference now before us under Section 617 of the Code.
3. This Court has jurisdiction to entertain the reference only when there is a suit or appeal before the Court making the reference in which the decree or order by the Court entertaining it is final.
4. In this case the order of the Munsif was not a final decree in the suit; nor would any order of the Judge in appeal passed at the present stage, disposing of the plea of jurisdiction, amount to a final decree within the meaning of Section 617, Civil Procedure Code. In other words, there would be no decree. Whether the Judge reversed or upheld the Munsif, a final decree could only be passed by the Court subsequently disposing of the suit upon the merits, and the decision of such Court would not only be open to appeal to the Judge, but to a second appeal to this Court.
5. Under these circumstances, I do not think that the case falls within Section 617 of the Code, and the record must be returned to the Judge, and he must dispose of the appeal as to him seems fit. Any costs that may have been incurred by the parties owing to this reference will abide the result of the cause.
6. I concur.