1. We are of opinion that the appellant in the present case did appeal against the decree, within the meaning of Section 591 of the Code of Civil Procedure (Act XIV of 1882) though the only reason for the appeal was the erroneous decision in regard to the interlocutory order. But the terms of the section, in our opinion, allow such an appeal.
2. The decision of the Subordinate Judge as to the construction of Section 591 of the Code of Civil Procedure is, no doubt, in accordance with the decisions in Sher Singh v. Diwar Singh I.L.R. (1900) A. 366 and Causannel v. Gomes I.L.R. (1899) M. 260. But the former is based on an obiter dictum in Sher Singh v. Diwar Singh I.L.R. (1900) A. 366 and the decision in Causannel v. Gomes I.L.R. (1899) M. 260 is doubted in Godavari Samulu v. GajaPathi Narayana Deo I.L.R. (1889) M. 494 wherein it is pointed out that it is doubtful if it can be reconciled with the earlier decision reported in Sankaralinga Mudali v. Ruthnasabapathy Mudali.I.L.R. (1897) M. 324 The decision in Googlee Sahoo v. Prem Lall Sahoo I.L.R. (1881) C. 148 and Savitri v. Ramji I.L.R. (1889) 14 B. 232 are directly in favour of the appellant's contention, and they are, we think, in accordance with the language of the section and the principle on which it is based as explained by the Privy Council in Maharajah Mohesur Singh v. The Bengal Government (1859) 7 M.I.A. 283 : ' We are of opinion that this objection cannot be sustained. We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing, whereby, on the one hand, he might be harassed with endless expense and delay and, on the other, inflict upon his opponent similar calamities. We believe there have been very many cases before this tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their consideration until the whole cause had been decided, and brought hither by appeal for adjudication.''
3. We, therefore, set aside the decree of the Subordinate Judge and remand the appeal to the District Judge for decision on the merits. Costs will abide the event.