K.L. Gosain, J.
1. This case has a some what chequered history. One Ram Narain Mahajan of village Shahjehanpur, tehsil Rewari, had eight sons Ganeshi Lal, Shugan Chand, Gouri Sahai, Bhuria Mal, Lalji Mal, Tulsi Ram, Gur Dial and Ram Dial. In course of time the family shifted to Delhi and Carried on business there in the locality known as Khari Baoli. The branch of Gouri Sahai became extinct by his death without leaving any issue.Joti Prashad grandson of Tulsi Ram and Sat Narain grandson of Gur Dial brought the suit giving rise to this appeal for partition of the property which they alleged belonged to the joint Hindu family of the descendants of Ram Narain. A preliminary decree was ultimately passed in the case on the 27th August, 1943, in which the plaintiffs' share was held to be one-third and the defendants' two-thirds (each of the defendant having one sixth). Ganeshi Lal defendant had spent Rs. 5,800/- to redeem a part of the property in dispute and had received a sum of Rs. 1,200/- on account of redemption of some mortgagee rights.
It was therefore, provided in the decree of the trial Court that the plaintiffs would pay proportionate amount out of the balance of Rs. 4,600/- to Ganeshi Lal. On appeal the learned District Judge maintained the preliminary decree subject to the modification that the plaintiffs were required to pay proportionate amount out of Rs. 5,000/- to Ganeshi Lal. Ganeshi Lal came up to the High Court in second appeal, but the decree as modified by the learned District Judge was maintained. An appeal was then taken to the Supreme Court of India but the same was dismissed. At the time of hearing of the appeal it was submitted to their Lordships of the Supreme Court that on account of some of the lines having become extinct, the shares of the parties had undergone a change, but their Lordships did not give any final decision on the said point and observed in their judgment as under:-
'The parties are not agreed on the shares to which the plaintiffs are entitled, and this is because after the date of the final decree some of the branches have become extinct by the deaths oJ their representatives. Whether under Customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled.
Subject to what is contained in the foregoing paragraph, the appeal will stand dismissed with costs.'
2. It may be noted here that this order was passed by the Supreme Court on the 7th November, 1952, but after the date of the preliminary decree and before the aforesaid date there were two orders passed by the trial Court -- one on the 28th August, 1949, and the other on the 12th April, 1949, by means of which the shares of the parties were modified. By virtue of the first order the plaintiffs' share was increased from 2/6ths as provided for in the preliminary decree to 2/5ths and the share of each of the defendants WAS increased from I/6th as provided for in the preliminary decree to l/5th. By virtue of the order, dated the 12th April, 1949, the plaintiffs' share was modified again from 2/5ths to one-half and that of the defendants collectively to the balance one-half
When the records were received back by the trial Court after the decision of the appeal by the Supreme Court, the matter of fixation of shares wasagitated by the parties. By an order, dated the 29th June, 1954, the trial Court found that the plaintiffs were entitled to one-third share, Ganeshi Lal defendant to one-half and Rameshwar Dial defendant to l/6th share and ordered that final partition would be made according to the aforesaid shares.
The plaintiffs felt aggrieved with this order and filed an appeal in the Court of the District Judge, Gurgaon. The appeal came up for hearing before Shri Sunder Lal, learned Additional District Judge on the 16th April, 1955, and there a preliminary objection was raised on behalf of the respondents to the effect that the appeal was not maintainable. It was contended that the order passed by the trial Court did not amount to a decree and was, therefore, not appealable. The learned Additional District Judge gave effect to this preliminary objection and dismissed the appeal as not maintainable. The plaintiffs have now come up to this Court in second appeal.
3. The only point that arises for decision in this second appeal is whether the order passed by the trial Court on the 29th June, 1954, amounted to a decree and an appeal against the same was therefore competent.
4. The learned counsel for the appellants relies on a number of cases which are Peary Mohan Mookerjee v. Manohar Mookerjee, AIR 1924 Cat 160, Kasi v. Ramnathan Chettiar, 1947-2 Mad LJ 523 and Basavayya v. Guravayya, AIR 1951 Mad 938.
5. In the Calcutta case a suit had been filed for administration of a debutter estate, for the removal of a trustee and for the appointment of a new trustee or receiver. The trial Court dismissed the suit, but on appeal the High Court passed a decree in favour of the plaintiff in the following terms :-
'It is declared that the sale of Bahirgora held on the 14th January, 1913, is not operative against the debutter estate, but the first defendant (the shebait) is entitled to be reimbursed the precise amount recoverable by him to be investigated by the Court below. Steps will be taken forthwith to place the debutter estate in the hands of a receiver to be appointed by this Court, and the first defendant will cease to be shebait from the date when the receiver takes possession.'
On appeal to the Judicial Committee this decision was affirmed and the judgment of the Judicial Committee concluded as follows:-
'An order must be made declaring that the purchase by the second appellant (son of the she bait) was invalid and that proper and necessary steps should be taken to secure the property; and that the first appellant (the shebait) is entitled, subject as herein mentioned, to repayment of the purchase money. An account should be directed showing what, if anything, is due from the first appellant (the shebait) to the estate, and such money should be deducted from the purchase moneys, the balance, if any, of the moneys in Court to be paid! out, and the first appellant (the shebait) to have-a charge on the estate for such sum.'
On the basis of this order of the Judicial Committee, the Subordinate Judge made an order which defined the extent and character of liability of theshebait to render an account, and specified the mode, the period and the properties.
The shebait appealed against this order and anobjection was taken that the order did not amount to a decree and was, therefore, not appealable. This objection was repelled by a Division Bench of the Calcutta High Court and on the facts of that case it was found that the order amounted to a formal adjudication by the Court on the rights of the parties and therefore fell within the ambit of definition of the decree as provided for in Section 2 of the Code of Civil Procedure.
6. In the case reported in 1947-2 Mad LJ 533 the suit was for rendition of partnership accounts and the Court adjudicated on the substantive rightsof the parties with respect to several matters in controversy in the said suit and drew up a formal orderwhich read as under: -
'This suit coming on for hearing on before me in the presence of * * * having stood over to this day for consideration, this Court doth order that the papers be and hereby are remitted back to the Commissioner to take a revised account of the assets and liabilities of the suit firm as they stood on 23rd May, 1927, and the subsequent accounts of the partnership merely on the basis of the aforesaid accounts in the light of thevarious directions contained in this order, and submit a revised statement and report thereon within four weeks from this date; and direct plaintiffs to deposit Rs. 150/- towards the Commissioner's further remuneration within a week from this date; and the case be and hereby is directed to be called on 18th September, 1946'.
An appeal was filed against this order in the High Court of Madras, and a preliminary objection was taken by the respondents that the said appeal was not competent as the order under appeal did not amount to a decree. Patanjali Sastri J., as he then was, delivered the judgment of the Bench and held that the order in question fulfilled all the requirements of the definition of the decree as provided for in the Civil Procedure Code, and, therefore, it was a decree and was as such appealable.
7. In the case reported in AIR 1951 Mad 938 a Full Bench of the Madras High Court held that ordinarily in a suit for accounts there would be one preliminary and one final decree, but that there was nothing in the Civil Procedure Code which could be construed as a prohibition against the Court, in proper case, for passing more than one preliminary decree and one final executable decree. The facts of that case were slightly different, but reliance on the same was placed only for the purpose of showing that in a suit for accounts there is no bar to more than one preliminary decree or one final decree being passed.
8. All the three cases really proceed on their own facts and the ratio decidendi of none of them is, in my opinion, applicable to the facts of the present case.
9. Mr. Bhagwat Dayal who appears for the respondents relies on Gela Ram v. Ganga Ram, ILR 1 Lah 223 : (AIR 1920 Lah 395), Banwari LaI v. Amrit Sagar, AIR 1949 EP 400, Vamanacharya Ramacharya v. Govind Madhavacharya, AIR 1924 Bom 33, Baliram Ganpatrao v. ManoharDamodhar, AIR 1943 Nag 204 (FB), Lala, Banwari Lal v. Lala Bent Prasad, AIR 1937 All 694, and Bharat Indu v. Yakub Hasan, ILR 35 All 159.
10. The two Allahabad cases mentioned above lay down the proposition of law that it is not open to a Court to pass more than one preliminary decree in a suit for rendition of accounts or for partition and that the Civil Procedure Code envisages only one preliminary and one final decree to be passed in such suits.
11. In the case reported as ILR 1 Lah 223 : (AIR 1920 Lah 395} a revenue officer trying a suit under the procedure laid down in Section 117(3)(b) of the Punjab Land Revenue Act recorded a judgment but did not draw up any final decree, A memo of costs was prepared at the bottom of the judgment itself and an appeal was filed in the High Court on the basis of the said judgment A preliminary objection was taken that no formal decree had been drawn up and the appeal was not competent against the judgment accompanied only by the memo of costs.
It was contended on behalf of the appellants that the judgment itself should be treated as a decree and should be held to be appealable as such. A Division Bench of the Lahore High Court consisting of Scott-Smith and LeRossignol JJ. held that the judgment could not be treated as a decree and the appeal was therefore not competent. They Observed in their judgment -
'Order XX, Rules 1 to 5, Civil Procedure Code, deal with judgments in original civil suits and Rule 6 gives the particulars which are to be entered in the decree. Specified forms are prescribed for decrees in different classes of suits by Appendix D of the first schedule to the Code. It is therefore quite clear that in the case of an original civil suit the decree roust be quite distinct from the judgment. Order XLI Rule 1 of the Code lays down that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded. * * * *'
12. In the case reported as AIR 1949 EP 400 a suit for dissolution of partnership and rendition of accounts was dismissed by the trial Court as barred by limitation. On appeal by the plaintiff the first appellate Court set aside the judgment and granted a preliminary decree against the defendants for dissolution of partnership and for rendition of accounts. No decree-sheet was, however, prepared in Form 21 of Appendix 'D' of Schedule I to the Code. The defendants came up to this Court in second appeal without filing any copy of the decree along with the memorandum of appeal.
On a preliminary objection being taken that the appeal was not competent, it was urged by the appellant that the judgment should itself be treated as an appealable decree. Harnam Singh J. who heard the said appeal held that the Code of Civil Procedure clearly contemplated that in the case of original suit the judgment and the decree should bo distinct, that there should have been a decree drawn up in accordance with the Form No. 21, that the memo of costs filed in the appeal did not satisfy the requirements of the law, and that as there wasno decree in the case, the second appeal was not competent.
13. The same view was taken in AIR 1924 Bom 33 and AIR 1943 Nag 204 (FB).
14. Now, there can be no doubt that it is not incumbent on the trial Court to pass any preliminary decree in suite for partition of property or separate possession of a share therein. Sub-rule (2) of Rule 18 of Order XX provides as under:-
'If and in so far as the decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of several parties interested in the property and giving such further directions as may be required.'
The aforesaid rule evidently gives a discretion to the Court to pass a preliminary decree or not and it is on the facts of each case that the trial Court has to decide whether to pass such a decree or not. Their Lordships of the Supreme Court while giving directions for determination of shares in their order, dated the 7th November, 1952, did not probably contemplate the passing of any more preliminary decree. They expressly said that the question was left over for determination by the trial Court and 'the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled'. If the said shares are to be determined only with a view to deliver possession to the plaintiffs of such share to which they may be found entitled, the impugned order of the trial Court is nothing more than an interlocutory One the correctness of which will have to be examined in the appeal against the decree which may ultimately be passed.
Be that as it may, it is quite dear that no formal decree has in this case been passed. The plaintiffs, if they so chose, could have made an application to the trial Court for the preparation of a formal decree on the basis of its judgment now impugned in the appeal, but they did not adopt that course. There is no doubt that the order of the trial Court amounts to an important adjudication on the rights of the parties, but the said adjudication Es not formally put in the form of a decree as provided for in the Civil Procedure Code, and cannot therefore be treated as a decree for the purposes of an appeal. I am definitely of the view that the drawing up of a decree or the omission to do so is a conclusive test for finding whether or not arc appeal under Section 96, Civil Procedure Code, is competent.
If a decree has not been drawn up in an original suit, there is evidently no right given to any of the parties to appeal against a judgment howsoever adversely it may affect a party. If, however, a decree is drawn up, any of the parties aggrieved against the same will have a right of appeal. It is well established that there is no right of appeal unless it is expressly given by a statute, and Section 96, Civil Procedure Code, gives a right of appeal only against a decree and not against a judgment.
15. The view taken by the lower appellate Court seems to me to be correct, and in the result, I dismiss this second appeal, but in the peculiarcircumstances of the case, I make no order as to costs.
16. On the oral request of Mr. D. N. Aggarwal, I certify the Case to be a fit one for a Letters Patent Appeal.