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Kasi Alias Alagappa Chettiar and ors. Vs. Rm.A.Rm.V. Ramanathan Chettiar Alias Srinivasan Chettiar Through His Next Friend, Av.Pl.Ct. Ramanathan Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)2MLJ523
AppellantKasi Alias Alagappa Chettiar and ors.
RespondentRm.A.Rm.V. Ramanathan Chettiar Alias Srinivasan Chettiar Through His Next Friend, Av.Pl.Ct. Ramanath
Cases ReferredMaharaja Maheshur Singh v. The Bengal Government
Excerpt:
- - order 'is defined as the formal expression of any decision of a civil court which is not a decree [section 2(14)] while a 'judgment 'is the statement given by the judge of the grounds of a decree or order [section 2(9)]. 4. the court below has undoubtedly adjudicated on the substantive rights of the parties with regard to the several matters in controversy in the suit involved in issues 7 to 14 and the charges brought forward by the respondent, and the determination of these matters is clearly intended to be final and conclusive so far as that court is concerned. if an occasion arises, as it has arisen in the present case, for making such an order after a preliminary decree has been passed, we fail to see why it should not fall under order 20, rule 25 itself as a supplementary.....patanjali sastri, j.1. this appeal arises out of a suit brought by the respondents for the taking of partnership accounts. valliappa chettiar, the deceased father of the first respondent and alagappa chetty, the deceased father of the first appellant, carried on business as money-lenders and bankers at theinzig in burma under the name and style of ' r. m. p.'. alagappa died in 1925, but his sons took.his place in the partnership and continued the business. on the 23rd may, 1927, valliappa also died and as his only son, the first respondent, was a minor at the time, alagappa's sons, the first appellant and the deceased father of the third appellant, were left in sole management of the business and its assets. though the first respondent attained majority in 1936 as he is deaf and dumb and.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of a suit brought by the respondents for the taking of partnership accounts. Valliappa Chettiar, the deceased father of the first respondent and Alagappa Chetty, the deceased father of the first appellant, carried on business as money-lenders and bankers at Theinzig in Burma under the name and style of ' R. M. P.'. Alagappa died in 1925, but his sons took.his place in the partnership and continued the business. On the 23rd May, 1927, Valliappa also died and as his only son, the first respondent, was a minor at the time, Alagappa's sons, the first appellant and the deceased father of the third appellant, were left in sole management of the business and its assets. Though the first respondent attained majority in 1936 as he is deaf and dumb and mentally defective the present suit was brought in 1939 by one Ramanathan Chettiar his next friend and his deceased brother's widow who has adopted the second respondent. Various pleas were raised in answer to the suit in the written statement filed by the appellants who alleged, inter alia, that the business was not continued after the death of Valliappa but was wound up, only such acts of management as were necessary for winding up being done with the assent and approval of Venkatachalam Chetty who was administering the estate of Valliappa as the executor of his will, and that such assent and approval would bind the respondent. Numerous issues were framed in the suit and the Court below finding many of them for the respondents passed a preliminary decree on the 21st December, 1942, declaring the proportionate shares of the parties in the partnership and directing certain accounts to be taken by a Commissioner to be appointed for the purpose. Issues 7 to 14 were, however, reserved for consideration ' at the time of passing the final decree.' Among these undetermined issues were the following:

(8) From what date is the plaintiff entitled to claim accounts ?

(9) Whether the defendants have utilised the assets, advantages and facilities of the suit firm as alleged by the plaintiffs, and whether, for that reason, defendants are liable and to what extent ?

(10) Whether the defendants carried on business of the suit firm after the death of Valliappa Chettiar or whether the firm was only being wound up by them?

(11) Whether the plaintiffs are entitled to interest and if so, at what rate ?

(12-a) Whether the acts of the defendants are validated by the assent and concurrence of Venkatachalam Chettiar, the second plaintiff, and the first plaintiff's mother as alleged by the defendants.

(12-b) Whether the acts of the said Venkatachalam Chettiar in respect of the suit firm are valid and binding on the plaintiffs and whether the defendants are precluded from raising this plea by reason of the decision in O.S. No. 38 of 1935.

It is, however, obvious that these issues had an important bearing on the accounts to be taken, and the Subordinate Judge fell into an error in directing the Com- missioner to take accounts without determining these issues. As might have been expected in such circumstances, the report submitted by the Commissioner was found to be defective and unsatisfactory, and the Court, after hearing the objections of the parties to the report and recording its finding on the said issues and also on certain charges formulated by the respondents on the statement of accounts filed by the appellants, passed an order on the 20th August, 1946, directing the Commissioner to take accounts afresh and submit a revised report in the light of the directions contained in the order within the time fixed therein. The respondents applied for duly certified copies of 'judgment and decree ' on the 22nd August, 1946, but seeing that, while printing charges were required to be deposited for the judgment, no stamp papers for a copy of the ' decree ' were called for, they applied on the 8th October, 1946, for a copy of the 'decree.' The application was, however, returned with an endorsement that no decree had been drawn up as only 'findings ' were given. Thereupon the respondents again applied on the 26th October, 1946, asking the Court to draw up a ' decree ' in the suit but the Court ordered on the said application that ' there has been no final disposal but only directions have been given. Only a formal order will be drawn up.' The ' formal order' a copy of which was subsequently furnished to the respondent runs thus:

This suit coming on for hearing on...before me in the presence of...and 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 the various 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.

It is against this decision that the present appeal is directed.

2. The respondents contending that the appeal is not maintainable as the decision of the Court below is not a ' decree ' within the meaning of Section 96, read with Section 2(2) of the Civil Procedure Code, 1908, applied to this Court for hearing and determining this question as a preliminary matter before the parties embarked upon further expenditure in connection with the appeal, and, the application having been granted, the case is posted before us for deciding the point.

3. Under the Civil Procedure Code, save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction (Section 96), while Section 104 provides for appeals from certain orders therein mentioned. The decision now under appeal is manifestly not one of the orders specified in that section, and unless it is a decree, the appeal would be incompetent. The question accordingly is whether the decision is a decree as that term is defined in the Code.

The definition reads as follows:

Section 2(2) ' Decree ' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all 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, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

'Order ' is defined as the formal expression of any decision of a Civil Court which is not a decree [Section 2(14)] while a ' judgment ' is the statement given by the Judge of the grounds of a decree or order [Section 2(9)].

4. The Court below has undoubtedly adjudicated on the substantive rights of the parties with regard to the several matters in controversy in the suit involved in issues 7 to 14 and the charges brought forward by the respondent, and the determination of these matters is clearly intended to be final and conclusive so far as that Court is concerned. And the copy furnished to the appellants shows that the adjudication was also formally expressed. It is true that as already stated, the learned Judge who dealt with the appellant's applications for a copy of the ' decree ' took the view that only 'findings ' and ' directions ' had been given and that only a 'formal order ' and no decree need be drawn up as 'there has been no final disposal.' It is, however, to be observed that the Judge who expressed this opinion was not the same judge who gave the decision now under appeal, there having been a change of personnel in the meantime. Apart from this, as pointed out in Adinarayana Chetty v. Narasimha Chetti (1930) 60 M.L.J. 167 : I.L.R. Mad. 337 if in substance an order in an original suit is a ' decree ' as defined by the Code, the mere fact that the Court which passed the order styles it an ' order ' or a ' decretal order ' will not make it non-appealable. We must, therefore, dismiss as of no weight the suggestion of| Mr. Panchapakesa Sastri for the respondent that in a question as to whether the decision of a Court is a 'decree ' within the meaning of the Code, the view of the Court which pronounced it is an important, if not the determining factor. Primal facie, then, the decision under appeal satisfies all the requirements of the definition of a decree in Section 2(2) and is appealable as a preliminary decree as it does not completely dispose of the suit.

5. It was, however, urged for the respondent that the present Code provides for only one preliminary and one final decree being made in certain specified classes of suits, and that a preliminary decree as provided for in Order 20, Rule 25, in suits of this kind having been passed already on the 21st December, 1942, the decision under appeal pronounced on the 20th August, 1946, could not be regarded as a ' preliminary decree ' but as either mere findings or ' directions ' given to the Commissioner under Order 20, Rule 27 with regard to the mode in which the account is to be taken, and therefore non-appealable. We are unable to accept this contention. We do not think that Order 20, Rule 27 has any bearing on the point under consideration. That rule, which corresponds to Order 33, Rule 3 of the Rules of the Supreme Court, deals merely with the issue of directions as to the mode of taking or vouching an account, the acceptance of books of accounts as prima facie evidence, re-opening of settled accounts and such other matters relating to the proof of accounts, and does not cover orders adjudicating on the rights of parties with regard to all or any of the matters in controversy in the suit. If an occasion arises, as it has arisen in the present case, for making such an order after a preliminary decree has been passed, we fail to see why it should not fall under Order 20, Rule 25 itself as a supplementary preliminary decree unless there is clear indication in the provisions of the Code that no more than one preliminary decree can be passed in a suit in which such a decree is provided for. This brings us to- the main question debated at the Bar with citation of numerous cases.

6. So far as this Court is concerned, our attention has not been drawn to any case in which the point was actually decided by a Division Bench, though there are dicta expressing divergent views. The preponderance of authority in the Allahabad High Court upholds the principle of one preliminary and one final decree in a suit. The Bombay High Court favours the opposite view. The Calcutta High Court has spoken with different voices. In this state of the authorities, we have examined the position at some length, assisted as we have been by able argument on both sides.

7. In Ghulsam Bivi v. Ahamadsa Rowther I.L.R.(1918) Mad. 296 the question arose whether a claim for future mesne profits put forward in a partition suit but not provided for in the , preliminary decree could be allowed in the final decree and it was held that it could not be allowed. Ayling, J., was of opinion that Order 21, Rule 28, read with Rule 22, made it clear that the award of mesne profits in all cases was to be by preliminary decree. Krishnan, J., rested his decision on the ground that

a claim for future mesne profits is not one that a party can, as a matter of right, insist upon being adjudicated upon in the suit,

and that the lower Court was right in refusing to consider the question of future profits in the circumstances of that case. Both the learned Judges, however, went on to express their dissent from the view taken by Oldfield, J., in Mahalakshmamma v. Rajamma (1918) 43 I.C. 458 and by a Division Bench in Maimod Rowther v. Duraiswamy Naicker A.A.O. No. 277 of 1917 (unreported case) that the Court could direct in its final partition decree an inquiry regarding mesne profits which could be made the subject of a separate final decree after conclusion of the enquiry.

' This involves,' said Ayling, J., 'three distinct stages of decree ; whereas as it seems to me the law expressed in the Rules above quoted contemplates only two', adding that the observations in the unreported case were of an obiter nature. Krishnan, J., observed:

Neither rule contemplates more than one preliminary decree and one final decree in one suit. In fact, the Code nowhere contemplates more than one preliminary decree and one final decree in one suit. To have two final decree and to call the first one a final decree will be really a misnomer as it will not be final. To hold the view taken in Mahalakshmamma v. Rajamma (1918) 43 I.C. 458 and Maimod Rowther v. Duraiswamy Naicker A.A.O. No. 277 of 1917 (unreported case) is, it seems to me, with all respect to the learned judges, to- unnecessarily lengthen out proceedings with a possibility of appeals and Second Appeals from at least three different decrees in the same suit.

We are unable, with due deference, to agree with these observations, which were not strictly necessary for the decision of the case and must therefore be regarded as obiter dicta. If it be a misnomer to call a decree 'final' and to say that it could be followed by another final decree in the suit, it is a misnomer sanctioned by the Legislature, for the provision that a decree ' may be partly preliminary and partly final ' implies that further proceedings have to be taken to be followed by another final decree completely disposing of the suit. Thus the definition of decree in Section 2(2) itself contemplates more than one final decree being passed in a suit. Again Order 12, Rule 6 provides for judgment being given on admissions. Though the rule speaks of the Court making ' such order or give such judgment as the Court may think just' and does not in terms refer to the passing of a decree, the phrase 'give judgment' clearly implies a. decree being passed at that stage, for otherwise the very object of the rule would be defeated. The matter has been made clear in this sense by amendments of the rule by this Court (Sub-rule 3) and by the Rangoon High Court (Sub-rule 2) . Where the claim is for money, a decree under the rule would be executable forthwith but it would be nevertheless ' preliminary 'as ' further proceedings have to be taken before the suit can be completely disposed of.' Where, for instance, the claim is for taking the accounts of two partnerships and the defendant admits the existence of the partnership and the proportionate shares of the parties in the case of one partnership, but raises disputes on these points in the other, the Court, would undoubtedly have the power under Rule 6 to pass a preliminary decree in the terms of Order 20, Rule 25 as regards the former partnership, while proceeding with the trial of the suit as regards the latter. Order 15, Rule 2 is another case in point. These are instances, and there may be others, where the Code contemplates more than one preliminary decree in the same suit. No doubt ordinarily there would be one preliminary decree followed by one final decree in suits of the kind mentioned in Order 20, Rules 12-18, which accordingly provide for 'a preliminary decree ' or 'a final decree ' as the case may be, being passed, but no inference can, in our opinion, be drawn from the general language used that the Code does not contemplate, and the Court has in consequence no power, even in special cases involving a multiplicity of claims or other complications, to pass, more than one preliminary decree or one final decree. The argumentum ab inconvenient in view of the possibility of numerous appeals is not very convincing. Considerations of convenience are not all in favour of a single preliminary and a single final decree alone being allowed in a suit. It is easy to imagine cases where it would be expedient to allow a party to settle a disputed point by preferring an immediate appeal and stopping an inquiry consequent on the adjudication of the trial Court, instead of requiring him to face the inconvenience and expense of such inquiry which would have been wholly un- necessary if such adjudication was ultimately reversed in appeal. The present case itself is an illustration in point.

8. Even under the old Code which did not expressly provide for the passing of a ' preliminary decree ' in any suit, their Lordships of the Judicial Committee stressed the expediency of passing such decrees so as to make it possible to prefer an immediate appeal to settle that part of a case on which the decision of the other parts depended. They observed in Muhammad Abdul Majid v. Muhammad Abdul Aziz (1896) L.R. 24 I.A 22 : I.L.R. 19 All. 155 (P.C.) ' The learned Judges of the High Court have examined the Code minutely to show that Subordinate Judge Kashi Nath Biswas acted under its provisions. Their Lordships think that such an examination is hardly necessary . The Subordinate Judge had before him a case consisting of two part : a question of title, and an incidental question of account depending largely on the title. It was for the obvious advantage of the parties, and they proposed, that the first part should be decided and the second reserved for decision. In point of fact the first part has been the subject of successive appeals by the defendant, who successfully struggled against the trial of the second part pending these appeals. If the Code Forbade the parties and the Court so to arrange the disposal of a law suit, it would be a very startling thing. It is not pretended that the Code contains any such prohibition.'

Incidentally, the words we have italicised would seem to indicate the right approach to the problem ; the question is not whether the Code allows more than one preliminary decree or one final decree to be made, but whether the Code contains a prohibition against the Court in a proper case passing more than one such decree. We are unable to discover anything in the Code that can be construed as such prohibition. On the other hand, as we have already observed, there are indications that the Code contemplates more than one preliminary decree and one final or executable decree in a suit.

9. The view we have expressed above finds support in Ramanathan Chetti v. Alagappa. Chetti (1929) 59 M.L.J. 102 : I.L.R. Mad. 378 decided by Curgenven, J., where the point directly arose for decision. That was a suit for dissolution of a partnership and for accounts in which a preliminary decree in the usual terms was passed and a final decree followed containing a direction that the defendant should take the outstandings due to the firm and should account to the other partner for the same. An application was filed to enforce this direction more than ten years after the decree was passed, and it was held that the direction in the so-called final decree was in the nature of a preliminary decree, that the suit was still pending and that the application being in the nature of an application to pass a final decree was not subject to the law of limitation. Repelling the contention that the Code contemplates only one preliminary decree and one final decree in a suit the learned Judge observed that he could find: 'nothing in the Code repugnant to the notion that more than one preliminary decree or more than one final decree may be passed.'

10. The latest case in this Court brought to our notice in which this point was referred to is Nandesam v. Balakrishnamma I.L.R. (1940) Mad. 394 where an appeal preferred from an order made after the passing of the preliminary decree in a partition suit, rejecting an application by an alienee of family, property praying that the alienated property may be allotted to the share of the alien or was dismissed as not maintainable as the order did not deal with a ' matter in controversy in the suit ' and could not therefore be regarded as a decree. One of the learned Judges, however, referring to the contention that there could be no legal objection to there being in proper cases more than a single preliminary decree, observed that ' the proposition appears to be warranted by authority ' and referred to Raja Peary Mohan Mookerjee v. Manohar Mookerjee 27 C.W.N. 989 Shanker Appaji v. Gangaran Bapuji I.L.R.(1938) 52 Bom. 360 Ramanathan Chetti v. Alagappa Chetti (1929) 59 M.L.J. 102 : I.L.R. Mad. 378 and to the decision of Piggott, J., in Bharat Indu v. Takub Hasan I.L.R.(1913) All 159. The observation was, however, no more than an obiter dictum as the order under appeal was held not to be a decree.

11. Reference was made by the respondent's learned counsel to Arunachalam Chettiar v. Pratapasimha Rajah Saheb (1930) 60 M.L.J. 79 but the case is not of much assistance to him. After the passing of a preliminary decree in what was in effect a partition suit, the Court imposed a charge on the share of one of the parties by way of adjusting the shares among them. It appeared that the order was intended to be embodied in the final decree which was passed soon after, but it was drawn up by the office in a decretal form ' unnecessarily,' and a civil miscellaneous appeal was preferred against the order. The appeal was held incompetent, as ' not until the final decree was drawn up did it (i.e., the order) come into force.' The case thus turned on its special facts.

12. As already stated, the High Court at Allahabad favours the view that the Code contemplates the preparation of only one preliminary decree in a suit for partition. In Bharat Indu v. Takub Hasan I.L.R. (1913) All 159 Piggot, J. (whose judgment is printed in small type in the report without mentioning his name which however appears in the report in Bharat Indu v. Takub Hasan (1913) 11 A.L.J. 120 was of opinion that:

It is not in itself an impossibility that there should be a second preliminary decree passed in a suit for partition if such second decree is based upon facts or circumstances alleged to have come into existence after the passing of the first preliminary decree.

13. His judgment was reversed on appeal by Richards, C.J., and Banerji, J., who held that 'the Code of Civil Procedure contemplates one preliminary decree and no more. The same view was reiterated in Banwarilal v. Beni Prasad A.I.R. 1937 A.C. 694. A decision of the trial Court fixing the period for which account had to be taken in a suit for partition, although it might finally decide the rights of the parties so far as that Court was concerned, was held not to be a decree but only an interlocutory order from which no appeal lay, as there could be only two decrees, a preliminary decree and a final decree and no third decree could be passed by the trial Court. Neither in this case nor, indeed, in any of the earlier decisions of that Court to which it refers is there any discussion with reference to the provisions of the Code to support the conclusion arrived at beyond the mere assertion that the Code 'contemplates ' only one preliminary decree and one final decree.

14. Turning to the decisions in Calcutta, Jashoda Dassee v. Upendra Nath (1918) 44 I.C. 671 is the earliest case brought to our notice under the present Code. It was held that, in a partition suit, a ' supplementary final ' decree could be made in regard to an item.of common property in respect of which proceedings pursuant to the preliminary decree had been stayed during the pendency of an appeal from the latter decree. Muhammad Abdul Majid v. Muhammad Abdul Aziz was relied on but no reference was made to any of the provisions of the Code. In Kamini Debi v. Promothanath Mukerjee 19 C.W.N. 755 a decision of the trial Court that the plaintiff's suit was maintainable was held not to be a preliminary decree and so not appealable. The decision was rested mainly on the ground that the plaintiff's right to maintain the suit was not a ' matter in controversy ' in the suit. The learned Judges dissented from the wide interpretation placed on that expression by the Bombay High Court in Sidhantha Dhondev v. Ganesh Govind I.L.R.(1912) 37 Bom. 60 so as to include within its scope questions of limitation, misjoinder, jurisdiction, etc. They added that the opposite view would lead to a multiplicity of preliminary decrees and of appeals therefrom, whereas the:

intention of the Legislature appears to have been that there should be only one preliminary decree in the suit to be followed by one final decree.

Reference was made to Bharat Indu v. Takub Hasan I.L.R.(1913) All. 159 and in the matter of Raja Pdrtab Chunder Singh (1867) 7 W.R. 222 a case decided before the definition of 'decree' was introduced in the Code.

15. In a, later case reported in Raja Peary Mohan Mukerjee v. Manohar Mukerjee 27 C.W.N. 989 a Division Bench of the same Court (of whom Mookerji, J. who was a party to the decision in Kamini Debi v. Promothanath Mukerjee 19 C.W.N. 755 was a member) expressed the view that there might be exceptional cases in which a supplementary preliminary decree leading up to the final decree in the suit could be passed. After the passing of a preliminary decree in a suit for the administration of a debutter estate and for other incidential reliefs, the trial Court made an order defining the extent and character of liability of the shebait to render an account and specifying the mode, the period and the properties. This order was held to be a preliminary decree in a supplementary proceeding and to be appealable as such. The decision of Piggot, J., in Bharat Indu v. Takub Hasan (1913) 11 All. L.J. 120 was referred to as supporting that view, but no reference was made to the reversal of that decision by a Division Bench of the same Court in Bharat Indu v. Takub Hassan I.L.R.(1913) All. 159. Kamini Debi v. Promothanath Mukerjee 19 C.W.N. 755 was referred to on another point, viz., the true meaning and scope of the expressions 'matter' and ' rights ' in the context of the definition of decree, but the conflicting view expressed on the question of the possibility of more than one preliminary decree apparently passed unnoticed.

16. Babu Lal v. Hari Bakhsh A.I.R. 1929 Lah. 699 was also cited before us as an authority in support of the principle of a single preliminary decree in a suit for taking partnership accounts, but we find that the decision was based on the ground that the order appealed against, which found that the defendant was in possession of the account books and directed that accounts should be taken up to the date of the final decree, was not an adjudi- cation on the rights of parties within the meaning of Section 2(2) of the Code. We note in passing that the learned Judges in distinguishing Raja Peary Mohan v. Manohar Mukerjee 27 C.W.N. 989 apparently endorse the criticism of that decision by the Judicial Commissioners of Sindh in Udhav Das v. Divi Das A.I.R. 1928 Sind 100 as being based on a ' mistaken reference ' to a ruling of Piggot, J., in Bharat Indu v. Yakub Hasan (1913) 11 All. L.J. 120 but not found in the report. As we have already pointed out, the judgment of Piggot, J., appears in the report in small print was evidently overlooked.

17. In Kedarnath v. Pattulal I.L.R.(1945) Luck. 557 it was broadly laid down that in a suit for partition:

there can be only two decrees. The first is a preliminary decree and the second a final decree. In between these two stages there can be no other decree passed by a Court which may be designated as a decree liablevto appeal.

There is, however, no reference to the relevant provisions of the Code, reliance being placed on some of the decisions to which we have already referred and also on Jogodishury Debea v. Kailash Chandra Lahiri I.L.R.(1897) Cal. 725 a decision under the old Code which does not appear to have much bearing on the point. 18. The Bombay High Court in Govind Ramachandra v. Vithal Gopal I.L.R.(1912) 36 Bom. 536 appears to have proceeded on the assumption, for there is no discussion of the point, that it is permissible to pass more than one preliminary decree in a suit. In a suit to redeem a mortgage according to the provisions of the Dekkhan Agriculturists' Relief Act a preliminary issue was raised as to whether the plaintiff was an agriculturist within the meaning of the Act and was found against the plaintiff who was directed accordingly to pay the requisite court-fee within one week from the date of the finding. That not having been done the suit was subsequently dismissed.. In the appeal against the decree of dismissal, the plaintiff was not allowed to question the correctness of the finding on the preliminary issue on the ground that he should have asked the Court to draw up a preliminary decree in terms of its finding and appealed against that decree. This somewhat extreme view would seem' to envisage every finding being embodied in a decree and is inconsistent with the earlier decision of the same Court in Bai Divali v. Shah Vishnav Manordas I.L.R.(1909) 34 Bom. 182 where it refused to enter- tain an appeal as no formal decree had been drawn up. However that may be, the Court seems to favour the view that any conclusive adjudication of the rights of parties on any matter in controversy in the suit could form the basis of a prelimi- / nary decree, and the Court's power to make such decrees is not restricted either in regard to the number of such decrees or in regard to the classes of suits in which they can be passed. Bharma bin Sidappa v. Bhama Gavda I.L.R.(1915) 39 Bom. 421 where the Court construed the expression ' rights of the parties ' in the restricted sense of substantive rights has no bearing on this point.

19. It will thus be seen that decisions of the several Courts which had occasion to consider the question are by no means uniform, and we do not feel pressed by any current of authority to hold that the Court, in a proper case, has no power to make more than one preliminary decree and one final decree, at any rate in those classes of suits in which the Code expressly provides for the passing of a preliminary decree. As we have already observed, it would often be found convenient to the Court and advantageous to the parties, especially in such classes of suits, to have disputed rights finally settled by an immediate resort to the Court of appeal, if so- desired, before further proceedings on the basis of such rights are undertaken at much expenditure of time and money which otherwise might ultimately be found to have been thrown away, and the Courts' power of so regulating its procedure as to make this possible should not, in our opinion, be fettered by ruling out the possibility of more than one preliminary decree in a suit, not on the strength of ; any prohibition contained in the Code for we 'find none, but on the ground that hat it does not ' contemplate ' such possibility.

20. It is next contended for the respondent that, even assuming that a plurality of preliminary decrees is possible, the decision of the 20th August, 1946, amounts to no more than findings recorded on certain parts of the case and no appeal lies therefrom. We have already observed that prima facie the decision appealed against fulfils the conditions of the definition of a ' decree ' in Section 2(2) of the Code, but it is urged that even an adjudication on the rights of parties on all or any of the matters in controversy in the suit, which is not sufficient for the disposal of the suit cannot be formally embodied in a decree and so cannot be appealed against This argument is closely allied to the one we have already dealt with, if, indeed, it is not the same put in a different form. Reliance is placed on a recent decision of a Full Bench of the Nagpur High Court reported in Baliram v. Manohar I.L.R. (1943) Nag. 241 which no doubt supports the contention. Niyogi, J., delivering the opinion of the Full Bench, said:

The Civil Procedure Code itself makes a distinction between the decision of an issue and the decision of a suit as will be clear from Rule 5, Order 20, It is only when the finding upon any one or more of the issues is sufficient for the decision of the suit that judgment can be pronounced followed by a decree ; see Section 33. A decree as defined in Section 2(2) of the Civil Procedure Code embodies the formal expression of an adjudication which conclusively determines the suit and not merely some of the points in controversy even though they may affect the rights of the parties; It is only when all the matters in controversy in the suit are decided or when some of the matters in controversy the decision of which is sufficient for the disposal of the suit as a whole are adjudicated that, the result can be embodied in the decree.

And after referring to Order 14, Rule 2. and Order 15, Rule 3 he summed up thus:

Various provisions of the Civil Procedure Code referred to above emphasise the distinction between findings which result in the decision of the suit and those which do not. A finding on any point in controversy in a case would ordinarily be final so far as the Court is concerned but unless that finding is such as is sufficient for the disposal of the suit there can be no judgment and no decree ; unless there is a decree there can be no appeal ; see Section 96.

With all respect, we are unable to agree with this view which seems to us to run counter to Section 2(2) of the Code. In stating the effect of that sub-section in the passage quoted above, the learned Judge appears to have taken unwarranted liberty with the language used. The sub-section does not say that the adjudication should conclusively determine the suit. Indeed, it says the contrary: determines the rights of parties with regard to all or any of the matters in controversy in the suit. and by adding the ' explanation ' further makes it clear that the adjudication, in order to be a decree, need not dispose of the suit. Neither Section 33 nor Order 20, Rule 5 and the other provisions to which reference is made can be construed as restricting the scope of Section 2(2) or as controlling and qualifying its terms. Section 33 and Order 20, Rule 5 are general provisions treating of the subject of 'judgment and decree' and must accordingly be understood as providing for cases where a decree has to be made. 'Judgment ' having been defined as meaning ' the statement given by the Judge of the grounds of a decree or order' [Section 2(2)], Section 33 cannot imply that a decree must follow on every judgment pronounced or that a judgment can be pronounced only where a decree has to be passed in the case. Order 20, Rule 5 only lays down a rule to be observed in the preparation of judgments. The Court should state its finding or decision with reasons therefor on each separate issue ' unless the finding on one or more of the issues is sufficient for the decision of the suit ' in which case, it is implied, findings need not be recorded an the judgment on each issue. Similarly, Order 14, Rule 2 and Order 15, Rule 3 provide that the Court may, in the cases therein mentioned., try only such of the issues as may be found sufficient for the decision by the suit. These provisions cannot, in our opinion, be reasonably construed as laying down that no judgment can be pronounced, and therefore no decree can be passed, or that there can be no formal expression of the adjudication, unless the finding on one or more of the issues is sufficient for the decision of the suit.

21. The question whether an adjudication is a decree or not must be determined with reference to Section 2(2) and not with reference to implications, true or sup- posed, arising from the general provisions relating to judgments and decrees or to disposals of suits. Nor can any considerations of policy as to the expeditious administration of justice or the avoidance of expense and delay such as were adverted to in Maharaja Maheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283 be imported into the determination of the question. The new Code has enacted a comprehensive defini- tion of ' decree ' and has imposed upon the suitor, by Section 97, the necessity of appealing against preliminary decrees, and the only question can be whether a particular decision falls within the definition. No doubt, it is not always easy to determine this question owing to the somewhat vague language employed and there may be room for divergence of opinion, as can be seen from the variety of cases referred to above. We are, however, satisfied that the decision under appeal fulfils the condition of Section 2(2) and we hold that this appeal is maintainable under Section 96 of the Civil Procedure Code.

Costs will abide and follow the result.


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