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. Bat 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 decision in Sher Singh v. Diwan Singh 22 A. 366 and Caussanel v. Soures 23 Ma. 260. But the former is based on an obiter dictum in. Sheo Nath Singh v. Ram Din Singh 18 A. 19 and the decision in Caussanel v. Soures 23 M. 260 is doubted in Godavari Samulo v. Gajapathi Narayana Deo 23 M. 494, where it is pointed out that it is doubtful if it can be reconciled with the earlier decision reported in, Sankaralinga. Mudali v. Ratnasabapathy Mudali 21 M. 324.
3. The decisions in Googlee Sahoo v. Premlall Sahoo 7 C. 148 and Savitri v. Ramji 14 BA. 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 Moheshur Singh v. The Bengal Government 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 do so, 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 any thing 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.
4. We, therefore, set aside the decree of the Subordinate Judge and remand the appeal to the District Judge for decision on the merits.
5. Costs will abide the event.