1. The question before the learned District Judge was whether petitioner's application for the appointment of a Commissioner to work out the shares recoverable under a compromise decree for partition was an application for execution thereof or whether, the decree being merely preliminary, the application was a step in the suit and was not barred by any limitation. As we shall decide for the latter alternative, we dismiss Appeal against Order No. 162 of 1914 and pass our decision on Civil Revision Petition No. 344 of 1914. The provisions of the compromise are in every respect appropriate to a preliminary partition decree, such as is contemplated in Latchman Chetty v. Ramanathan Chetty 14 M.L.J. 436 and Appadu v. Venkata Ranga Rau 18 M.L.J. 23 and these two eases show that such an order, as petitioner asked for, could have been made by the lower Court at any time of its own motion, as a step in the disposal of the suit, and that there could be no question of any bar of limitation in connection with the application for it. The argument to the contrary is supported by reference only to cases in which applications for an order for sale in connection with preliminary mortgage-decrees were in question, Abdul Majid v. Jawahir Lal 23 Ind. Cas. 649 : (1914) M.W.N. 485 and Avula Charamudi v. Marriboyina Raghavalu 28 Ind. Cas. 871 : 28 M.L.J. 471 : 18 M.L.T. 76 and we do not think that they are in point nor can be applied generally to preliminary decrees of every description.
2. In these circumstances, we set aside the learned Judge's order and remand the case for re-admission and disposal in the light of the foregoing with reference to Order XXV, Rules 13 and 14, Civil Procedure Code. Costs in the lower Court and here to date will be provided for in the lower Court's final decree. There will be no order as to costs in the appeal against order.
Sadasiva Aiyar, J.
3. I entirely agree on the question whether an appeal would lie, because the lower Court chose to treat the petition as a petition in execution. I respectfully dissent from the decision in Latchman Chetty v. Ramanathan Chetty 14 M.L.J. 436. Suppose a Court chooses to pass a decree for possession of a house in a suit filed on its Small Cause side for recovery of money, and which suit is undoubtedly within its Small Cause jurisdiction, I do not think that an appeal will lie from such a decree and the proper remedy, I think, should be sought by revision under Section 115 of the Civil Procedure Code or by invoking the powers given by the Letters Patent.
4. In Shankarbhai v. Somabhai 3 Bom. L.R. 129 it was held that 'the character of the suit' (I would add, or of a proceeding) was not altered by the mode in which' the Court 'exercised jurisdiction' and that if the suit (or proceeding) was of such a character that. no appeal lay, an appeal could not be entertained. Similar was the decision in Indra Chandra Mukerjee v. Srish Chandra Banerjee 21 Ind. Cas. 120.