1. The first of these is a revision petition against the order of Mr. S. Venkatasubba Rao, the Subordinate Judge of Bezwada, dated 30th April, 1925, whereby he appointed a Commissioner to take the accounts in respect of points Nos. 5 to 8 (the meaning of which will be explained later on) and whereby he framed an additional point on which the Commissioner was also to take accounts.
2. The second is a petition to revise another order of the same date whereby the same Subordinate Judge allowed a petition by defendants in the suit (O.S. No. 30 of 1916) for an independent enquiry and judgment by that Subordinate Judge on the points in dispute that arise in the suit as the result of the judgment of the Privy Council.
3. The litigation of which the suit referred to, No. 30 of 1916, is an off-shoot, originated in No. 35 of 1895 and concerns the Medur and Nidadavole testates. The previous history detailed to us at great length is, I find, set out in the judgment of their Lordships of the Privy Council in Venkatadri Appa Rao Bahadur v. Parthasarathi Appa Rao . The earlier suit, No. 35 of 1895, was in 1899 dismissed by the Subordinate Judge who found the adoption of Narayya Appa Rao valid. Meantime, on the 14th December, 1899, one Parthasarathi who was reversioner to the Nidadavole estate filed Suit No. 44 of 1899 claiming both that and the Medur estates against the two Appa Raos. There the adoption was held invalid. The appeals were consolidated in the High Court, and the latter held the adoption valid. The Privy Council in 1913 reversing the decision of the High Court [Venkata Narasimha Appa Row v. Parthasarathy Appa Row 23 Ind. Cas. 166 : 37 M. 199 : (1911) M.W.N. 299 : 12 A.L.J. 315 : 18 C.W.N. 554 : 26 M.L.J. 411 : 15 M.L.T. 285 : 16 Bom.L.R. 328 : 41 I.A. 51] held the adoption invalid and declared the right of Venkayamma who was the natural mother of the adopted boy Narayya Appa Rao and of the two Appa Raos to the profits of the estates after her death. As a result of this, Parthasarathy obtained one-third of the Nidadavole estate. Venkayamma left a Will, and the present Suit No. 30 of 1916 is by the assignee of Parthasarathy against the legal representatives of the two Appa Raos (who are now dead). The plaintiff brings the suit as the assignee of the residues and legacies I and 2 left by Venkayamma and for the administration of her estate. The main defence to the suit is said to be limitation, also that the testatrix had no right pendente lite over the property and that the plaintiff is not the legal representative of Parthasarathy. On 29th November, 1917, the Subordinate Judge of Bezwada decided the other issues for the plaintiff but held the suit was barred by limitation. On appeal, Sadasiva Ayyar and Phillips, JJ., differed and in the Letters Patent Appeals Nos. 20, 24 and 26 of 1921 Schwabe, C.J., and Couts-Trotter and Kumaraswami Sastriar, JJ., held the suit not barred. This was affirmed by the Privy Council on 30th January, 1925. The High Court passed a preliminary decree on the Letters Patent Appeal which will be found in the Privy Council Record at page 628. The suit was remanded in order that the Subordinate Judge of Bezwada might inter alia, make the necessary enquiries and take certain account (1) of the moneys which under the declaration made by the High Court are re-payable by the defendants who were directed to pay the said moneys into Court, (2) of the debts and liabilities, if any, of the deceased Venkayamma, which were payable out of her estate, and, (3) of the amounts due to the respective legatees under the said Will Ex. A. The High Court also directed that after the necessary inquiries and accounts had been taken the Subordinate Judge should pass a final decree. It is from this that the present petitions come before us. The Subordinate Judge then was Mr. K. Sambasiva Rao, and on the 18th of October, 1922, he ordered the defendants to file a statement of accounts and to deposit their account-books. This was done on 19th December, 1922, and in March, 1923 the plaintiff's objections were heard. On the 4th of April, 1923, the Subordinate Judge framed tentative points for determination on the accounts. Both 'sides objected, and, on the 4th July, 1923, the Judge finally framed eight points for determination and according to his order; 'the following points for determination are framed for trial. The above issues as amended etc., stand thus and are renumbered.'
4. Meanwhile, defendants put in a petition to the High Court to amend the decree and judgment in the Letters Patent Appeal in certain respects which are not material to the present consideration. This petition was dismissed by the High Court constituted as before on the 16th November, 1923. Statement of accounts and objections thereon were thereafter filed and the matter was posted for evidence before the Subordinate Judge on 20th December, 1923, 17th January, 1924, and on subsequent dates up to 3rd May, 1924, when the arguments were finished. Most unfortunately, Mr. K. Sambasiva Rao, was transferred to another sub-Court after the summer vacation and the District Judge, Mr. K. P. Lakshmana Rao, on the 16th July, 1924, reported to the High Court that Mr. K. Sambasiva Rao's order in O.S. No. 39 of 1916, 'remains unwritten.' The High Court in an administration order dated the 25th July, 1924, directed Mr. K. Sambasiva Rao to write his order on the points settled for determination and send it for delivery to his successor, Mr. S. Venkatasubba Rao; accordingly the order on the points heard and determined by Mr. K. Sambasiva Rao was pronounced on the 29th September, 1924, by his successor Mr. S. Venkatasubba Rao. On the 3rd October, 1924, the defendants put in a petition to the Subordinate Judge, praying that 'he might be pleased to come to an independent judgment as to the enquiries and accounts that may be necessary to carry out the preliminary decree of the High Court irrespective of the opinion recorded by your Honour's predecessor and to appoint a Commissioner for the purpose of making enquiries and taking accounts and to grant full opportunity for the defendants to adduce evidence after reviewing if necessary the opinion recorded on points Nos. 1 to 4' and on 30th April, 1925, as stated, Mr. S. Venkatasubba Rao passed an order refusing to review the order of Mr. K. Sambasiva Rao on the ground that none of the conditions set out in Order XLVII Civil Procedure Code, existed to permit him to do so. But under Section 151, Civil Procedure Code, on a consideration of the law that he quoted, he found the preponderance of authority to be that the findings by a predecessor do not bind his successor who has to come to an independent opinion of his own on the record on the findings. He, therefore, decided to conduct an independent enquiry, but observed that when an occasion arose for giving final judgment the findings recorded on points Nos. 1 to 4 by Mr. K. Sambasiva Rao would, along with the rest of the evidence in the case, be given their due weight and consideration The civil revision petitions, therefore, come before us to revise this order and the second order of the learned Subordinate Judge appointing a Commissioner and referring an additional point to him.
5. Several questions of law arise in this case and we have listened to a very protracted argument on the law on each side. But as the case was, I considered, not free from difficulty, I thought it was as well that the learned Vakils should be allowed to state the law as fully as possible.
6. The first point taken is that this is clearly an interlocutory matter and that we should not or cannot in revision under Section 115 interfere. We have had many cases quoted commencing with In Re: Nizam of Hyderabad 9 M. 256 which is the well known opinion of Muthuswami Aiyar, J., that the present Section 115 does not embrace interlocutory judgments. The matter depends on the construction of the words 'any case which has been decided' in the section and a Full Bench of the Lahore High Court [Lal Chand Mangal Sen v. Behari Lal MehrChaud 84 Ind. Cas 259 : 5 Lah. 288 : A.I.R 1994. Lah. 425 : 6 Lah.L.J. 558 : 1 Lah. Cas. 36 (F.B.)] has decided that an interlocutory order is not a case and, therefore, refused to interfere in a matter such as this. For my part, I think that the current of authority in Madras is too strong to allow of any such, decision here without reference to a Full Bench which under the circumstances I do not consider necessary. Various opinions have been expressed by different Judges in our High Court and I conceive that Ayling, J.'s reference to a Bench reported as Arunachalam Chettyar v. Arunachalam Chettyar : AIR1922Mad436 was really intended to decide this point. The Bench held that the question was concluded by authority in favour of interference. There is no doubt that what may be called the personal equation enters a good deal into matters of this sort, and that it has become rightly or wrongly largely a question of discretion as to whether one should interfere or not. For instance, interference has been held justified 'to avoid trouble, delay and expense,' Kariya Goundan v. Tirukkaivelu Chetty : AIR1925Mad588 , Sobhanadri Appa Rao v. Venkataramayya Appa Rao : AIR1927Mad212 or if 'manifest injustice would result' Sitaramaya v. Ramappaya 39 Ind. Cas. 160 : 5 L.W. 207 or where there are 'patent irregularities of procedure, the power of superintendence is given to see that the proceedings are properly conducted [See Sri Poosapathi Ramachandra Raju v. Sri Rajah Vachavayi Venkata Subbayamrna 30 Ind. Cas. 41 : 29 M.L.J. 53] or to prevent the trial taking an illegal course, Jagannatha Sastry v. Sarathambal Ammal : AIR1923Mad321 or prevent the illegal issue of a commission, Somasundaram Chettiar v. Manicka Vasaka Desika Gnana Sammanda Pandara Sannadhi 31 M. 60 : 3 M.L.T. 246 though it has been said Ramakrishna Pillai v. Krishnaswami Pillai 68 Ind. Cas. 167 : 15 L.W. 667 : (1922) M.W.N. 521 : A.I.R. 1922 Mad. 321 that such interference should be exercised with 'extreme diligence' and the general rule is against it. In Dhapi v. Ram Pershad 14 C. 768 the Court held that 'a case' included an interlocutory order and that there was nothing in Section 115 to prevent the Court from setting aside an interlocutory order if made without jurisdiction. The name view seems to have prevailed in Bombay Bai Atrani v. Deepsing Baria 33 Ind. Cas. 358 : 40 B. 86 : 17 Bom.L.R. 1097 which hold that a case may be wide enough to include an interlocutory order and that the word 'case' is of a wide and comprehensive meaning and covers, wider area than suit or appeal. The difficulty partly arises from the fact that 'case' is nowhere defined in the Code. Mr. Lakshmanna for the respondents would limit 'case' to a suit or some order arising out of what would be called on the Original Side an originating summons, i.e., matters testamantary, insolvency, guardianship etc. That is too narrow a definition, I think, clearly appears from the case where the matter is most fully discussed Buddhoo Lal v. Mewa Ram 63 Ind. Cas. 15 : 43 A. 564 : 19 A.L.J. 558. There the District Munsif had passed a formal order on a question of jurisdiction to the effect that the suit was cognisable by his Court. The majority of the Full Bench by three to two held that there was no case and that no case has been decided by the Court of Appeal, that all that has been decided was one of several issues in the suit and that the defendants had their remedy by way of appeal in the suit. Piggott, J., who discussed the use of the words 'case' and 'suit' in the Civil Procedure Code remarks that neither of them were defined, that a case need not terminate in a decree, that 'case' is a more comprehensive expression than 'suit', that wheras all cases are not suits, every suit is at least a case.
7. As I have said before, it seems to me that the opinion of the majority of the Allahabad Court cannot now at least without a reference to our Full Bench be followed in this Court. Farther in the Allahabad case there was the weighty dissenting judgment of Walsh J., who held that the fact that the hearing was an interlocutory one or a preliminary one does not make it anytheless a case It seems to me too late as far as this Court is concerned to hold that there can be no interference in an interlocutory matter or proceeding on the ground that it is not a case decided; for, I think on a reference to the order of the learned Judge it does definitely decide that the matter will be independently enquired into by himself after receiving the report; of the Commissioner though he certainly says that he is prepared to consider the findings already recorded by his predecessor. Where he, satisfied that he was not going to interfere with these findings it seems to me hardly likely that he would have taken this course. I am, therefore, of opinion that, although this is an interlocutory matter, it is, under the Madras decisions' at any rate, a matter which can be interfered with by way of revision on the ground that it is a case decided by the Subordinate Court. As to whether one is called upon to interfere or not, is of course, another matter and to the consideration of that I now proceed.
8. It is said on the one side that the order of Mr. K. Sambasiva Rao was a mere tentative matter just as though one might workout questions of accounts roughly on waste pieces of paper and, on the other,, that it is an order which was binding on his successor. If it was such an order it perfectly clear that Mr. S. Venkatasubba, Rao, had no jurisdiction to supersede it by an order of his own as regards points Nos. 1 to 4 which were the only ones really decided by Mr. K. Sambasiva Rao. But if it was a mere expression of opinion or informal and tentative proceeding, it would' be disregarded by Mr. Sambasiva Rao's successor. The form of the order would certainly tell against the latter contention. The points are set out in order and findings are given on such of the points in-many cases after an elaborate discussion-of the evidence and all the different items of account involved. It cannot at least be said that it is a mere rough working of sums on waste paper. It is a considered finding or series of findings on the points that he had himself raised. Mr. Lakshmanna's, authorities for his contention resolve themselves under two heads; (1) remand cases and (2) what may be called original cases. For instance, it has been held in Calcutta on remand, Hira Lal Pal v. Etbar Mandal 32 Ind. Cas. 866 : 20 C.W.N. 43 that there is a chain of authority which says that final orders may and often are decretal and final in their character and, therefore, binding on parties in subsequent stages of the same litigation; and it may, be here incidentally remarked that there has been no appeal or review from Mr. K. Sambasiva Rao's order. The Calcutta Judges remark that an opinion expressed in a remand judgment would not bind a successor but an adjudication would. On the other hand a Single Judge of the Allahabad High Court in Gopi Nath Shukul v. Sat Narain Shukul 74 Ind. Cas. 1014 : A.I.R. 1923 All. 384 held that a Court from which the appeal came for final disposal could reconsider the remand order and the view of the law on which it is based and in Kamini Kumar Deb v. Durga Charan Nag 74 Ind. Cas. 392 : 37 CRI.L.J. 122 : A.I.R. 1923 Gal. 521, Mookerjee, J., said that on principles it cannot be affirmed that an order made under Order XLI, Rule 25 can be treated as erroneously made. It is made with jurisdiction and must be treated as authoritative though all portions of the record must be considered in the final disposal. In Masihunnissa v. Kaniz Sughra 60 Ind. Cas. 975 : 43 A. 377 : 19 A.L.J. 139 : 3 U.P.L.R. 30 it was held that an order of remand may be considered by the Bench that finally disposed of the case and the order of the findings thereon may be ignored if the remand is under Order XLI, Rule 25 and not Order XLI, Rule 23. So that we can derive this from the cases on remand, in the absence of any Madras authority that if the order amounts to an adjudication it cannot he interfered with by the successor. In any case, the present is not one of remand, and I am not convinced that the same considerations would apply. But to go to the direct cases which to my mind are far more important and on which this matter has to be decided one way or the other. In the Privy Council case reported as Ram Kirpal v. Rup Kuar 6 A. 269 : 11 I.A. 37 : 4 Bar.P.C.J. 489 a District Judge, Mr. Probyn, had decided in an interlocutory matter in execution that by a certain decree mesne profits were awarded. The Subordinate Judge considered himself bound by this decision of Mr. Probyn, i.e., his predecessor. The Fall Bench of the Allahabad High Court held on a reference to it that res judicata did not apply to proceedings in execution of a decree. Their Lordships held that the matter decided by Mr. Probyn was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit was binding upon them in carrying the judgment into execution. They held that Mr. Probyn had acted within his jurisdiction. It had never been reversed or set aside and as they remark: 'if the Subordinate Judge and the Judge were bound by the order of Mr. Probyn in proceedings between the same parties on the same judgment, the High Court was bound by it. and so also are their Lordships in adjudicating between the same parties.... The High Court acted as if they had been sitting upon an. appeal against the order of Mr. Probyn, but they were not so sitting.' To take the cases of our own Court which are only two in number, a decision of Kumaraswami Sastri, J., in Abdul Wahab Sahib v. Rokia Bibi Sahiba 73 Ind. Cas. 903 : A.I.R. 1924 Mad. 408 and the other of Miller and Pinhey, JJ., Krishnaswamier v. Swaminadhiar 18 M.L.J. 568 : 4 M.L.T. 352. In the former case we have the advantage of a considered opinion by the learned Judge. In it Coutts-Trotter, J; (as he then was) had before him a case of dissolution of partnership. Without making a preliminary decree he referred the whole case to the Official Referee who under the Indian Law is only a Commissioner. This order was not modified or reversed by appeal or review. Kumaraswami Sastri, J., held that Coutts-Trotter, J., had jurisdiction to try the suit and that his order was under the circumstances binding on the parties in subsequent proceedings and though it was too late for the latter to take any steps to get Coutts-Trotter, J.'s order set aside it could come in the final decree which would be subject to an appeal. In the latter case the Subordinate Judge modified his predecessor's order and had no power to do so. In that case the Court decided to interfere in revision under Section 115. This was also the opinion of Greaves, J., in Basanta Kumar Das v. Kusum Kumari Dasi 38 Ind. Cas. 584 : 44 C. 28 and as pointed out in Kalimuddin Ahammad v. Esahakuddin : AIR1924Cal830 , one Judge cannot sit in judgment upon another Judge's order, cf. also Bisheshwar Pratap Narain Sahi v. Asarfi Singh : AIR1924Pat136 where it was held that there was no such power under Section 151. In George Henry Hook v. Administrator-General of Bengal : (1921)23BOMLR648 a case that went to the Privy Council, the Original Side Judge had held that a certain disposition in a Will constituted a perpetuity holding that Section 11, Civil Procedure Code was not exhaustive and he gave the parties liberty to apply. The Administrator-General after a certain death took place, applied for further construction of the Will to the Court and the next of kin tried to re-open the question of the perpetuity. The decision of the Original Side Judge was held binding not only on the next of kin but also on the Judge who heard the further application. Reference may also be made to another case in the Privy Council, Ahmed Musaji v. Hashim Ebrahim : (1915)17BOMLR432 . There Fletcher, J., declared a partnership dissolved, his order for subsequent accounts being merely consequential thereon. It was pointed out that this is a decree though the latter part of it might have been separately made as an order and that the Code makes no provision for something which is neither a decree nor an order. The High Court, affirmed by the Privy Council, held that it was a preliminary decree and could not be questioned on a final appeal as if it has not been previously impugned.
9. Now to take up the cases relied on by Mr. Lakshmanna and to see how far they bear out his contention that the order of Mr. K. Sambasiva Rao was merely tentative or experimental, The two cases that he puts in the forefront of his contention are Amir Kazim v. Zainab Begam A.W.N. (1897) 152 and Ma Nyo v. Ma Yauk 4 L.B.R. 256. As to the first of these cases it must be observed that it is not reported in the regular series of the Allahabad High Court and is not of course binding as such upon us. Bat I do not want to put my decision of this matter on any narrow ground of that sort as with the exception of the two Madras authorities that I have already cited there seems to me no decided case in this Presidency on the matter. In Amir Kazim v. Zainab Begam A.W.N. (1897) 152 which was a case of second appeal Mr. Leggatt had heard an appeal in which his predecessor, who had only heard part of the case, had put on the record an opinion in the shape of a finding. The learned Judges of the Allahabad High Court (Knox and Burkitt, JJ.), held that a Judge who ultimately decides the matter has seisin of the whole case and is not bound to accept the view of the law on the facts as adopted by his predecessor who in this instance had wrongly interpreted a certain precedent. The report in this case is extremely meagre. We have nothing but the bare judgment of the Court which is short and which really gives no reasons for its view. If Mr. Leggatt's predecessor expressed only an opinion and not an adjudication, as pointed out in Hira Lal Pal v. Etbar Mandal 32 Ind. Cas. 866 : 20 C.W.N. 43 there is no doubt that he would not be bound by it. I think it would be unreasonable to regard this case as establishing a broad proposition which indeed in face of the law already quoted it could not possibly be taken to do, i.e., that one Judge can always interfere with the proceedings of his predecessor whenever he chooses to do so. In the second of these cases Ma Nyo v. Ma Yauk 4 L.B.R. 256 I must once again observe that this is not the judgment of a High Court and as such we might refuse to be guided by it if for no other reason. But as I have already said I am unwilling to place my reasons on a narrow ground like that. In this case Captain Nethersole who I presume was in the position of a District Judge first dealt with the case and framed issues. He thought it was indispensable to call evidence to show the source from which each piece of land and those in the schedule came into the defendant's hands and which is Mayung Yin's, He further observed that ' when this shall have been done there will be a decree for the plaintiff for the amount then found due on the mortgage etc.' Captain Nethersolo was succeeded by Mr. Heald who differed from his predecessor on the question of the necessity of calling evidence for the purpose stated above. The question was whether Mr. Heald had authority to go behind the findings of his predecessor and it was found that Captain Nethersole's judgment was given at a stage when a decree could not possibly have been made and was premature and unauthorised; there Captain Nethersole's orders did not decide the suit or have the force of a decree and might, therefore, be interfered with and might be superseded by Mr. Heald's. This was followed in Official Assignee v. Mahomed Hady 47 Ind. Cas. 555 : 11 Bur.L.T. 97 by Robinson, J., of the Burma Chief Court. Here, again, the question was as to the quality of Captain Nethersole's pronouncement. It was held that it could not amount to a decree which probably may be accepted as perfectly correct. But the Court does not seem to have considered whether it might not have been an order within the Code, at least as to that part of it which directed farther evidence, but that does not seem to be considered in the judgment. The next case is Hemandas v. Chellaram 13 Ind. Cas. 264 : 55 S.L.R. 184 by the Assistant Judicial Commissioner of Sind. One has again to advert to the source of the authority. There two preliminary issues were argued before the District Judge, Mr. Knight, who delivered an interlocutory judgment finding the suit was not barred under old b. 539 which he held was directory and not mandatory. In the meantime the law was changed and Section 92, Civil Procedure Code, was enacted. The Assistant Judicial Commissioner thought this decision was open to question as he found it was based on an erroneous assumption. He held that Mr. Knight's decision was not a decree nor contained the grounds of a decree. He interfered under Section 151 holding that the plaintiff had no vested interest at the date of the suit and that, therefore, could not claim to be unaffected by the change in the law. That is a case which I think must be confined to particular facts if indeed we can hold that it is an authority at all. The Assistant Judicial Commissioner seems to treat Mr. Knight's proceedings as obiter dicta. If they were, there is nothing more to be said. The decision may have rested on the change in the law in the interim. In any case, the interference by the Assistant Judicial Commissioner was under Section 151. In Taj Begam v. Saroi Begam 37 lad. Cas. 674 : 14 A.L.J. 1171 Pundic Hukku awarded mesne profits and held that mesne profits included interest. He passed no final orders but desired further information. Before this was obtained one of the parties appealed and the appeal was dismissed as premature. It was held by the High Court that he could have corrected his previous orders and that as his discussion was purely academic, his successor might disregard it. There the orders seem to have been entirely tentative. In Balvant Ramchandra v. Secretary of State 32 B. 432 : 10 Bom.L.R. 531 the issue as to whether a certain land was unassessed waste at the time of the grant was found to be based on a mistaken hypothesis and the only question before the Bench was stated to be whether having regard to the grant the Government were entitled to declare the land in dispute 'reserved forest'; all the other questions having been previously disposed of by the Bench of the same Court. The learned Judges held that that part of the former judgment, namely, that on remand, which was founded on a mistaken hypothesis should be discarded but the Bench held that judgment to be binding on them as regards all points specifically decided beyond possibility of revision. It is really a case of remand and falls under the observations made supra with regard to such cases. Hiatunnessa Bibi v. Kailash Chandra Saha 17 Ind. Cas. 224 : 16 CRI.L.J. 259 is a case in the Calcutta High Court and is one that came before the Bench under somewhat peculiar circumstances. Geidt J., who heard the appeal referred it to a Bench, who at the request of the learned Judge, disposed of the whole case in order to save circuitous procedure. I say it is a case based on special circumstances because by consent of the Judge apparently the whole case was placed before the Bench to make any order that they might think fit. Two cases in Allahabad require consideration. One is Mubarak Husain v. Bihari 16 A. 306 : A.W.N. (1894)) 97 where Mahmood, J., had framed issues and remanded the case for findings. Aikman, J., disregarded these findings and came to his own conclusion on the final disposal of the appeal. A Bench of the same Court held that this was within his competency. This is again a case of remand and is to be ranged with those cases which go the length of saying that as the Judge who finally disposed of the case has seisin of the whole case he may disregard any expressions of opinion previously recorded. Lachman Prasad v. Jamna Prasad 10 A.162 : A.W.N. (1887) 295 I have kept to the end because it is distinctly a curious case. It was a case before Sir John Edge C.J., and Brodhurst, J. The District Munsif decreed the suit. The Subordinate Judge confirmed it; thereupon the defendant-appellant appealed to the High Court and the plaintiffs filed a memorandum of objections with regard to the door or window and the northern drain. Oldfield and Mahmood, JJ., remanded the appeal to the lower Appellate Court for a finding as to how and to what extent the door or window affected the privacy of the plaintiffs. On a return of this finding, the matter came up before Oldfield and Brodhurst, JJ., who remanded the case on an issue as to whether by local custom there is any right of easement by which the plaintiffs have a right to have the privacy of their apartments maintained by the removal of the door and window. The Subordinate Judge again returned a finding on this that no custom had been established. The case came up before the Chief Justice and Brodhurst, J. The contention was that the present Bench had to decide the whole case and that the Bench should not treat the appeal as already decided and the questions arising on the memorandum of objections were the only matter open. So the question was whether the order of Oldfield, J., and Brodhurst, J., constituted a binding order in this case. The matter appears to have been decided on considerations of the practical difficulty pointed out by the learned Chief Justice which would arise from separating the appeal and the objections and treating the whole as having been decided on the 11th January, 1887, and the objections as decided in November of that year. But as the Chief Justice points out it must not be inferred that where Judges have heard arguments on some of the issues and have come to or expressed their views on those issues and have remanded another issue, the same Judges should be bound to hear on the return to the remand the case de novo. Brodhurst, J., withdrew his opinion expressed in the order of the 11th January and the appeal was dismissed, the objections being allowed. The decision seems to have been given on the ground that the order of Oldfield and Brodhurst, JJ., was merely an opinion, and it is also not improbable that the findings ultimately returned re-acted at least as far as one of the Judges was concerned on his former opinion expressed in January. It is a curious and rathera special case and cannot I think be treated as laying down any rule of universal application.
10. To sum up, it seems to me that what we have got to consider on this part of the case is whether the order of Mr. K Sambasiva Rao really amounted to an adjudication or not. I have examined the order and I am of opinion that It is something much more than merely experimental or tentative or opinionative. It is almost really a question of fact in each case, as the decisions show, if it is an adjudication it is binding; if it can be brought within the category of a mere opinion, it is not. It, therefore, seems to me on the best consideration I can give to it that this order of Mr. K. Sambasiva Rao was binding on his successor and that, therefore, the latter had no jurisdiction to make the order of the 30th April, 1925, deciding (1) that he would allow, an independent enquiry and judgment by himself and (2) appointing a Commissioner for the purpose of reopening the matter. I confine my remarks at present to points Nos. 1 to 4 which were all considered in detail by Mr. K. Sambasiva Rao.
11. I think, therefore, on the Madras view of the competency of the Court to interfere under Section 115 even when the matter is interlocutory and the construction that is contained in the judgments cited as to 'what is a case decided', I must hold that this is a case for our interference under Section 115, Revision Petition No. 424 of 1925 must, therefore, be allowed with costs.
12. As regards Civil Revision Petition No. 423 of 1925 we were apparently in error in supposing that the learned Vakil for the petitioner had no argument to urge as regards points Nos. 5 to 9 (of which points Nos. 5 to 8 were framed by Mr. Sambasiva Rao and the additional point No. 9 by Mr. S.M. Venkatasubba Rao) which have been referred to a Commissioner. We have accordingly now heard the arguments on these points and it is clear I think that it would be undesirable to refer the points as they stand wholesale to a Commissioner. Points Nos. 1 to 4 were decided by the Subordinate Judge Mr. K. Sambasiva Rao himself and it appears to me that the proper course to be taken with regard to issues Nos. 5 to 9 is that the Subordinate Judge should first decide the points of law that arise on these and should then if necessary for the purpose of taking accounts or other evidence refer any matters to a Commissioner. Issue No. 5 appears to be a question of fact. Issue No. 6 refers to moneys collected between 4th July 1898, and 9th March, 1899 and the point referred to the Commissioner is whether any of these amounts became the property of Vankyamma Certainly this is a point of law. A point of law is also contained in the 7th issue in the words 'and whether the defendants are liable therefor', the 8th is also objectionable in that it has left to the Commissioner to allow or to disallow the sums expended on the collections of the sums referred to in point No. 6. The new issue point No. 9, is equally objectionable; in that the Commissioner is to report what moneys are attributable to the income of the Medur Estate between the dates already given after deducting from the income the expenditure that should legitimately be charged to the widow's estate of Venkayamma. This clearly involves a point of law. It may be added that we have heard no argument that the Subordinate Judge had no jurisdiction to frame the points. I, therefore, think that the better course, in fact the only right course, would be that the Subordinate Judge should himself first decide the points of law involved in the issues, and the ascertainment of sums of money collected or expended etc., may be left to a Commissioner. I think, therefore, we ought to interfere with the order of the Subordinate Judge and direct that it be set aside and the matter remanded to him to take action in the light of the above remarks. I would allow no costs for this civil revision petition.
13. As regards the first four points (Nos. 1 to 4) we having already held that they are binding on Mr. Venkatasubba Rao, that part of the order in which he holds that these four points should be considered by the Commissioner must be deleted.
14. These civil revision petitions arise out of a course of litigation which has been in progress since 1895. But for the main question argued before us it will be sufficient to refer to the preliminary decree passed by this Court on 4th April, 1922, in Rajah Parthasarathi Appa Rao v. Rajah Venkatadri Appa Roa : (1922)43MLJ486 By that decree the suit was remanded to the Subordinate Judge of Bezwada with directions to restore it, to take the necessary accounts between the parties and to pass a final decree. Accordingly the Subordinate Judge then in office Mr. Sambasiva Rao Naidu framed eight points for determination, received statements of accounts, heard objections, took evidence and wrote an order recording his findings on points Nos. 1 to 4. As he was transferred before he could deliver this order it was pronounced by his successor Mr. Venkatasubba Rao on 29th November 1924. Shortly afterwards, on 3rd October 1924, the defendants applied to Mr. Venkatasubba Rao by a petition under Section 151 and Order XLVII, Rule 1 to review his predecessor's opinion recorded on points Nos. 1 to 4, if necessary, otherwise to come to an independent judgment irrespective of that opinion. Mr. Venkatasubba Rao disposed of this petition in the order dated 30th April, 1925, against which C. R. P. No. 424 is preferred. He found no sufficient reason to review Mr. Sambasiva Rao's findings but deemed that course unnecessary inasmuch as he considered the findings to be premature and not binding upon him. He accordingly allowed the application for an independent enquiry upon the eight points already framed and upon a ninth, which he newly framed himself.
15. The primary question for decision in C. R. P. No. 424 is thus whether Mr. Sambasiva Rao's order was binding upon his successor. I may, I think, start with the general proposition that a decree or a judicial order passed with jurisdiction and in consonance with the provisions of the Code is binding and can only be set aside by means of certain prescribed procedure such as by appeal, review or revision. The party in whose favour such a decree or order has been made has secured something in advantage, an interest or a right of which the Court cannot validly deprive him except by one of these recognized modes of procedure. This proposition is, I think, too well established to need the citation of particular authority in support of it. Order XX, Rule 3, lays down that the Court shall not alter a judgment once signed save as provided by Section 152 or on review. It may be said that this rule is restricted in its scope to a judgment accompanying the decree in a suit since Order XX, relates to 'judgment and decree'. But it is unnecessary to rely upon this express provision, since apart from judicial authority it is the clear policy of the Code that a judicial order once passed cannot be superseded unless and until it is reversed by some method which the Code prescribes. In the case of certain classes of orders an appeal is allowed by Section 101 and Order XLIII, Rule 1; while in the case of others the only means of attack is by revision. This general proposition seems too well-established to need support from case-law. I may, however, refer to the Privy Council case Ram Kirpal v. Rup Kuar 6 A. 269 : 11 I.A. 37 : 4 Bar.P.C.J. 489 (P.C.) which related to an order passed in execution deciding that upon the true construction of the decree it awarded mesne profits. Their Lordships observed that the order 'was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877 but upon general principles of law. If it were not binding, there would be no end to litigation.' Some other cases, which support this proposition I shall have occasion to refer to later, as for instance Ahmad Musaji v. Hashim Ebrahim : (1915)17BOMLR432 Abdul Wahab Sahib v. Rokia Bibi Sahiba 73 Ind. Cas. 903 : A.I.R. 1924 Mad. 408, Krishnaswamier v. Swaminadhiar 18 M.L.J. 568 : 4 M.L.T. 352 and Basanta Kumar Das v. Kasunt Kumari Dasi 38 Ind. Cas. 584 : 44 C. 28. In the last of these cases a learned Judge of the Calcutta High Court was asked to revoke an order in execution passed by another learned Judge of the same Court on the ground that it was made without jurisdiction, and he held that he could not do so either under Section 152, Civil Procedure Code, or by review or by the exercise of his inherent jurisdiction. But though these methods of getting rid of the order were suggested no attempt was made to argue that the order was not binding so long as it remained in existence. In Hiro Singh v. Ahmad Husain 69 Ind. Cas. 742 : A.I.R. 1922 Pat. 204 the question arose whether an order recording full satisfaction of a decree passed by one Judge could be re-called by his successor and although the contention was raised that the order was ex parte and passed behind the back of the decree holder and that the certificate of full satisfaction was a forgery, it was held that even if the order was erroneous the decree-holder should have had recourse to Section 115 of the Code of Civil Procedure and that the Court had no power whatever to recall an order once it had been perfected which I take to mean signed and delivered. Yet another instance of an order held to be binding although contested on the merits as not in accordance with the decree was disposed of in Bisheshwar Pratap Narain Sahi v. Asarfi Singh : AIR1924Pat136
16. Accepting then that a judicial order passed with jurisdiction to pass such an order, and framed in accordance with the provisions of the Code, is binding on the parties on the Judge who made it, and on his successor-in-office, is the order under reference such an order? As regards its form, Mr. Sambasiva Rao's findings are in the nature of a judgment upon the points dealt with, and it is true that no formal order seems to have been drafted to go with. it. A similar case was dealt with in Khirode Sundari Dabi v. Jnanendra Nath Pal 6 C.W.N. 283 where an appeal petition was preferred accompanied by a judgment alone. The learned Judges considered the question whether the order for which the judgment gave the grounds must be a separate document and held that there was no provision in the Code requiring a Court when deciding any matter which is other than a regular suit to draw up a formal order in addition to and distinct from the document containing the reasons for the order. I do not think, therefore, that there is any substance in this objection. If it be further objected that Mr. Sambasiva Rao's order does not in fact order anything, the answer would, I think, be that an order under the Code, like a decree may be merely declaratory. An order of this nature would seem to be covered by the definition in Section 2(14) as 'the formal expression of any decision of a Civil Court which is not a decree.' The Code does not contemplate anything other than a decree or an order and since these findings do not amount to a decree they necessarily fall, I think, into the other class. That this order is judicial and not administrative does not admit of doubt. It is an adjudication, so far as it goes, of the rights of the parties. Further, the Court had jurisdiction to adjudicate on these points. But it is said that in so adjudicating upon them at that stage of the proceedings it was not acting in accordance with the provisions of the Code. It should have deferred such adjudication until the whole evidence had been taken and materials were available for passing the final judgment and decree. To adopt the word used by Mr. Venkatasubba Rao, the adjudication was 'premature.'
17. The first observation to be made upon this position is, I think, that the Code nowhere specifies what classes of orders may be made and what may not be made. It is true that there are many express provisions empowering the Court, in the circumstances for which they are designed, to pass an order. It is not necessary to quote particular instances. But it remains true, I think, that a Court is inherently competent to pass orders not so expressly provided for, in cases where it is satisfied that the circumstances call for such action. In the words of Woodroffe J. in Hukum Chand Bold v. Kamalanand Singh 33 C. 927 : 3 Cri.L.J. 67. 'The Code does not affect the power and duty of the Court, in cases where no specified rule exists, to act according to equity justice and good conscience, though in the exercise of such power it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature.' The learned Judge proceeded to cite a number of instances in which, it had been held that the Court had inherent power to pass orders although the Code contained no express provision for them; such for instance as to consolidate suits, to allow a defence in forma pauperis, to remand a suit in cases not provided for by Order XLI, Rule 23 or 25, etc. The test, accordingly, seems to be whether in recording and announcing his findings at that stage the learned Subordinate Judge who passed the order acted contrary to the provisions of the Code in so doing. Dealing first with the express provisions, Section 33 lays down that the Court after the case has been heard, shall pronounce judgment and on such judgment a decree shall follow. This section does not say that the Court is precluded from passing what has been referred to as an interlocutory judgment at an earlier stage of the proceedings. This section has been amplified in Order XX, Rules 6 and 7, which provided that the decree shall agree with the judgment and shall bear the date on which the judgment was pronounced. The clear conclusion to be drawn from these general provisions, is I think, that the proper course in normal circumstances is for the Court to defer judgment until the hearing of the case is concluded rather than that a formal announcement at an earlier stage of any decision is irregular and unlawful. One exception to the general rule is furnished by Order XIV, Rule 2, whereupon issues both of law and of fact arising, the Court is of the opinion that the case may be disposed of on the issues of law only, it is directed to try those issues first and may postpone the settlement of the issues of fact until after the issues of law have been determined. The question really is whether this specific rule has the effect of excluding the determination of issues not in the nature of preliminary issues of law or whether upon the analogy which the rule furnishes, it is open to the Court to record findings upon some of the issues before the case as a whole is concluded. This question arose in Bhubanmohini Dasi v. Kumudbala Dasi : AIR1924Cal467 , where Mookerjee and Chotzner, JJ., held that the Court has ample authority 'to direct successive trials of different issues and even to record interlocutory judgments thereon, to be made the basis of the final judgment at the conclusion of the trial of the whole case.'
18. This view follows an earlier Calcutta case Annapurna Debya v. Amiyanath Banerjee : AIR1922Cal307 to which the former learned Judge was also a party; and as authority for the proposition Umabai Mangeshrao v. Vithal Vasudeo Shetti 1 Ind Cas. 120 : 33 B. 203 : 11 Bom.L.R. 34 : 5. M.L.T. 230 and Ramendra Nath Ray v. Brojendra Nath Dass 41 Ind. Cas. 944 : 45 C. 111 : 21 C.W.N. 794 : 27 Cri.L.J. 158 are cited. In the former of these two cases the suit was one in ejectment against a number of defendants occupying different portions of the plaint property and in remanding the case for re-trial the learned Judges directed the lower Court to consider whether any inconvenience would result from trying the suit against all the defendants at once or whether it should direct successive trial of the issues separately affecting different defendants. They add: 'Following the English practice interlocutory judgments may, if the plaintiffs succeed, be given against different defendants as their cases are disposed of, final judgment for possession of the whole property being reserved till the conclusion of the trial of the whole case.' It is this case which is cited as authority for a similar view taken in Ramendra Nath Ray v. Brojendra Nath Das 41 Ind. Cas. 944 : 45 C. 111 21 C.W.N. 794 : 27 Cri.L.J. 158. In Abdullah v. Behari Lal 97 Ind. Cas. 780 : 8 Lah.L.J. 361 : A.I.R. 1926 Lah. 638 : 27 P.L.R. 701 some issues in the suit were disposed of by one Judge and the remainder by his successor who only gave judgment upon the latter issues. There was an appeal and it was held that not only this latter judgment but also the judgment of the first Judge should have been filed with the memorandum of appeal to make the appeal competent. The ground given for holding this was that the decision of the first Court was a judgment within the meaning of the Code. Similarly in Narpat Rai v. Devi Das 14 Ind. Cas. 371 : 13 P.W.R. 1911 a case from the Punjab Chief Court, it was held that a written order deciding an issue constituted a judgment. In the same connection reference may be made to the remarks of Mr. Stanyon, Assistant Judicial Commissioner Nagpur, in Mahu v. Kishan 15 Ind. Cas. 935 : 8 N.L.R. 92 where he held that no appeal lay against an adjudication upon some among the total number of points, but that that adjudication was a foundation partially laid for a decree to be drawn up subsequently, when the other points calling for judgment had been tried and decided.
19. The conclusion I am inclined to draw from a consideration of these decisions is that, although the Code makes no provision, save in the special case dealt with in Order XIV, Rule 2, for the preparation and delivery of what has been called an interlocutory judgment or a judgment adjudicating upon some among the issues decided, before delivering the final judgment and decree, the Court would not necessarily be acting illegally or irregularly, or in contravention of the terms of the Code, in so doing. It may well be in furtherance of the disposal of a suit if a Judge who has heard the evidence upon an issue where all the evidence bearing upon that issue has been taken, gives, his finding upon it rather than leave that duty to a successor not so advantageously placed. On the view that the power of the Court extends to the adoption of this course I think it lies, upon the party advancing the proposition to show that a finding so recorded, signed and delivered is not binding upon the successor of the Judge who made it.
20. Reference has been made to a considerable body of case law on either side in support or in disproof of this position. Turning first to those cases which appear to favour the respondent's contention that such an order is not binding, I may refer to those which relate to the binding nature, of an order of remand passed by an Appellate Court. Instances of such cases are Lachman Prasad v. Jamna Prasad 10 A.162 : A.W.N. (1887) 295, Kamini Kumar Deb v. Durga, Charan Nag 74 Ind. Cas. 392 : 37 Cri.L.J. 122 : A.I.R. 1923 Cal. 521, Hira Lal Pal v. Etbar Mandal 32 Ind. Cas. 866 : 20 C.W.N. 43, Balwant Ramchandra v. Secretary of State 32 B. 432 : 10 Bom.L.R. 531, Mubarak Husain v. Bihari 32 B. 432 : 10 Bom.L.R. 531, Hiratunnessa Bibi v. Kailash Chandra Saha 17 Ind. Cas. 224 : 16 Cri.L.J. 259H, Masihunnissa v. Kaniz Sugkra 60 Ind. Cas. 975 : 43 A. 377 : 19 A.L.J. 139 : 3 U.P.L.R. 30, Bara Estate. Ltd. v. Arup Chandra 41 Ind. Cas. 337 : 2 P.L.J. 633 : P.L.W. 71 : 917 Pat. 342, Gopi Nath Shukal v. Sat Narain Shukul 74 Ind. Cas. 1014 : A.I.R. 1923 All. 384. The general effect of these decisions is that in the case of a remand order passed under Order XLI, Rule 23, any opinion or conclusion expressed by the Court passing that order is not binding upon the Court which finally disposes of the appeal after the return of the findings. In some cases e.g. in Balvant Ramchandra v. Secretary of State 32 B. 432 : 10 Bom.L.R. 531 this view was adopted with some hesitation and not without qualification. Butitis, I think, possible to accept this position as good law without regarding it as applying by analogy to the circumstances of the present case. Although the Court may give reasons in the judgment which 'accompanies order of remand, these reasons are intended rather to justify the resolve to remand the case than as a direct contribution towards its final disposal. In the formal order drafted upon such a judgment, nothing appears beyond a direction to the lower Court to return certain findings. It is thus reasonable to hold that when these findings, as well as the record of the previous enquiry come up for final adjudication in appeal the whole case is opened and the Appellate Court is not bound by the intermediate proceedings It may use them or not as it thinks fit. This, I think, is what is expressed by the learned Judges in Masihunnissa v. Kaniz Sughra 60 Ind. Cas. 975 : 43 A. 377 : 19 A.L.J. 139 : 3 U.P.L.R.30 where they say that the Appellate Court, in finally disposing of the appeal 'can consider the question whether that order i.e., of remand was a proper one and if it comes to the conclusion that that order should never have been passed, it can ignore the findings on the remanded issues and any evidence which may have been taken after the order remitting the said issues. The reason for this is obvious. No appeal lies against the order remitting issues nor does that order dispose of the pending appeal. Consequently the Tribunal which undertakes the responsibility of finally disposing of the appeal is seized of the entire case and has jurisdiction to reconsider the propriety of an interim order such as that remitting issues, passed by another Judge or by a Bench differently constituted.' I do not think, therefore, that cases of this description furnish an analogy of any value Apart from these cases the respondent relies upon three or four decisions the first of which to be considered is Amir Kazim v. Zainab Begam A.W.N. (1897) 152. That case is valuable to him for the following observation.
We cannot say too emphatically that the Judge who decides a case has seisin of the whole case; he is responsible for the findings and for the decree, and it is for him to decide them according to his view of the law and the facts, and he is in no way bound to accept either the view of the law or the facts which his predecessor had adopted and with which his opinion may be totally at variance.
21. Unfortunately, the facts which elicited that statement of legal principle cannot be clearly derived from the judgment and indeed it is not certain whether this may not have bee yet another case of an appellate order remanding a suit for findings. As an unqualified statement of law it would appear to be too wide, because it would apply even to a case where the Court had determined the issues under Order XIV, Rule 2. Without a fuller knowledge of the context it is difficult, therefore, to decide how much weight is to be attached to this pronouncement. There is a case of the Chief Court of lower Burma Ma Nyo v. Ma Yauk 4 L.B.R. 256, which is an authority for the position that inasmuch as the Code nowhere contemplates a judgment in a suit being given before a decree can be drawn up according to it, such a judgment embodying the findings on the issues or gone of them is premature and unauthorised and the successor of the Judge who delivered it is at liberty to ignore it and deal with the whole case. This case, which was followed in another Burma case, Official Assignee v. Mahomed Hady 47 Ind. Cas. 555 : 11 Bur.L.T. 97 is no doubt an authority for the view pressed upon us by the respondent that an interlocutory judgment is not binding upon the successor. In another case Hemandas v. Chellaram 13 Ind. Cas. 264 : 55 S.L.R. 184 not of a High Court but of the Sind Judicial Commissioner's Court there was a finding by one Judge that the suit was not barred under Section 539 of the Civil Procedure Code of 1882, which to some extent corresponded to Section 92 of the present Code. His successor who disagreed with this finding deemed himself to be at liberty to reconsider it. If this implies, as it appears to do, that the successor of the Judge who first decided an issue under Order XIV, Rule 2, may proceed to re-decide it, I must respectfully express my doubt whether it is good law. In Taj Begam v. Sarvi Begam 37 lnd. Cas. 674 : 14 A.L.J. 1171 there was a decree which provided for mesne profits but not for interest upon them. The Subordinate Judge who had to execute it held that by force of the definition of mesne profits interest was admissible. But he passed no final orders and merely directed the decree-holder to furnish certain information. As Sundar Lal, J., points out, a final order could only be made when the figures were supplied to and examined by the Judge, and he goes on to say:
What happened is analogous to what is often done, viz., recording a judgment on some of the issues in the case, the final judgment being passed later on when the remaining issues were decided.' Later on in his judgment he says: 'There was nothing to preclude Pandit Mohan Lal Hukku, on the true state, of facts being brought to his notice at any time before he made his final order, from correcting his previous orders on the issues provisionally decided by him.
22. Then the learned Judge proceeds to compare the case of a suit remanded on appeal which I have dealt with above. This case also affords some authority for the view that an order which is other than final is not binding, although it will be noticed that the declaration that interest was admissible was not carried into a formal order. I am inclined to think that the view taken in this case would be difficult to reconcile with the decision of the Judicial Committee in Ram Kirpal v. Rup Kuar 6 A. 269 : 11 I.A. 37 : 4 Bar.P.C.J. 489 to which I have already referred.
23. Coming now to the cases cited by the appellants, there is in the first place a class of them in which the order under question is held to amount to a decree and being a decree is necessarily binding. Such a case is Peary Mohun Mukherjee v. Manohar Mukherjee 41 Ind. Cas. 337 : 2 P.L.J. 633 : P.L.W. 71 : 917 Pat. 342. I should not further allude to it were it not for a remark in the judgment which bears upon the point which I have dealt with ear-Her. In finding that the order under reference was in essence a preliminary decree, the learned Judges remark that it is not essential that a preliminary decree should conform to one of the specific cases mentioned in Order XX of the Code, these cases being only illustrations of preliminary decrees helping in determining the true meaning of the definition of the term 'decree'. In the same way it is not necessary, I think, for an. order to be valid that it should be referable to any specific provisions of the Code. We must look at the nature of its contents., George Henry Hook v. Administrator General of Bengal : (1921)23BOMLR648 relates to an administration suit in which judgment and decree were passed only disposing partially of the questions raised and leaving over certain matters for settlement on a future occasion. The validity of a decree so framed was called in question, but it was held that so far as it related to the matters disposed of it was binding. The case is not of much use here as there is no true analogy between a decree which disposed of some only of the questions arising and the order now under challenge. The Privy Council case Ahmad Musaji v. Hashim: Ebrahim : (1915)17BOMLR432 is another instance in which the order passed was held to be a preliminary decree. It began by declaring the partnership dissolved and went on to refer certain matters to the Assistant Referee. The contention was that the latter portion of it was not a decree but, an order, but their Lordships observed:
The Code makes no provision for something which is neither a decree nor an order, nor for anything which is both, neither does it provide that one adjudication by the Court can be resolved into divers elements, some of which are decrees and some orders.
24. The circumstances of that case differ from those dealt with by Kumaraswami Sastriar J., in Abdul Wahab Sahib v. Rokia Bibi Sahiba 73 Ind. Cas. 903 : A.I.R. 1924 Mad. 408. The suit was for dissolution of partnership and the taking of the partnership accounts, and after settlement of issues Coutts-Trotter, J., as he then was, passed an order referring the whole case to the Official Referee. The Official Referee's report came before Kumaraswami Sastri, J., and exception was taken to the terms of the reference as embracing matters which the Official Referee had no jurisdiction to decide. It was accordingly contended that the order of Coutts-Trotter, J., was without jurisdiction and ultra vires.
25. The learned Judge however, while agreeing that the Official Referee had no power to decide certain of the questions referred to him, declined to adopt the view that Coutts-Trotter, J.'s order of reference could be treated as a nullity. He says:
The cases cited by the Advocate- General do not touch the question as to how far in the same suit and in the same proceedings; it is open to the parties to get behind an order passed, however incorrect that order may be. No authority has been cited in favour of the contention of the Advocate-General that I ought to go behind the order of Coutts-Trotter, J.' and further on:The order of Coutts-Trotter, J., standing as it does unreversed or unmodified either by appeal or review, must, I think, be taken to bind the parties in subsequent proceedings in the suit, and that the only remedy of the plaintiff is to carry the order in appeal.
26. The position, I take it, was that Coutts-Trotter, J., had jurisdiction in a suit of that character to make a reference to the Official Referee and accordingly that any reference which he made, whatever its terms, could not be held to be void. Similarly in the. present case it must depend, in my view, on whether Mr. Sambasiva Rao had jurisdiction at that stage of the proceedings to record his findings upon four issues. If as I think, he had jurisdiction to do this, his order would be binding upon his successor. I do not find much assistance from any other cases cited for the appellants. It appears to me that the best authority for their position lies in the observations of their Lordships of the Privy Council in Ram Kirpal v. Rup Kuar 6 A. 269 : 11 I.A. 37 : 4 Bar.P.C.J. 489 and especially in the passage which I have already cited verbatim.;
27. For the general reasons which I have already given that Mr. Sambasiva Rao's order although not specifically authorised by the Code, was yet not in contravention of its terms and that he had jurisdiction to pass such an order as a step towards the framing of the final decree, I am of opinion that the order was binding on his successor.
28. The question then arises whether we are competent to revise Mr. Venkatasubba Rao's order of 30th April, 1925, which must be taken, I think to have been interlocutory in character. There is a great diversity of judicial opinion as to whether the provisions of Section 115 of the Code of Civil Procedure can be applied to interlocutory orders. In Allahabad a Full Bench has decided this question in the negative and elsewhere a similar position has been taken up. But whatever view I might feel inclined personally to take, I agree that it is advisable to follow the preponderant view taken by this Court. In In Re: Nizam of Hyderabad 9 M. 256 Muthusami Aiyar, J., refused to revise an interlocutory order on the ground that the section presupposes a decision or an order in the nature of a decree. Since then, however, the opposite view has been fairly consistently held, though in several of the cases cited before us the question whether or not the words 'any case which has been decided' applied to the circumstances has not been specifically discussed. Although the order under reference may be interlocutory, yet since it goes to the extreme length of ignoring a predecessor's order and opens up again issues which it was the aim of that order to close, I think that, if any class of interlocutory orders should be open to revision an order of this character should be so open. Although it may not conclude the matter in issue between the parties its effect has the contrary, but not the less serious, consequence of re-opening a matter which has been concluded. I agree, therefore, that Section 115 gives us jurisdiction to revise the order, and I would avail myself of it to allow C. R. P. No. 424 of 1925, with costs, setting aside Mr. Venkatasubba Rao's order dated 30th April 1925. In the order of the same date against which C. E. P. No. 423 of 1925 is preferred, the learned Subordinate Judge framed a ninth issue and referred all the issues to a Commissioner, As regards points 1 to 4 this order has necessarily to be set aside in view of our order in C. R. P. No. 424. The argument has not been pressed before us that the lower Court had no power to frame an additional issue No. 9. As regards the reference to the Commissioner on points 5 to 9, it is clear that that officer, would not be competent to decide the questions of law which arise, though from the indefiniteness of the order of reference it would seem that such was the learned Subordinate Judge's intention. His powers must be exercised subject to the terms of Order XXVI, Rule 11. It is for the Subordinate Judge to decide the questions of law, whether or not he may find it necessary to employ a Commissioner to make an examination of the accounts. I would, therefore, set aside the order and remand the case for fresh disposal, accordingly. I agree with the order as to costs.