1. No separate decree was drawn up in this case, but the last two paragraphs of the judgment of the Subordinate Judge are as follows:
2. 'For these reasons it is ordered that a partition of the properties mentioned in list No. 1 of the plaint, with the exception of the thakurbari and of the houses mentioned in list No. 2, be made. The defendant No. 3 through his pleader states that his share may be separated also. The defendant No. 2 does not want her share to be separated. Thus one share (one-fourth) will be given to the plaintiff. Another share (one-fourth) will be given to the defendant' No. 3. The remaining share (half) belonging to the defendants Nos. 1 and 2 will be kept joint. The thakurbari and the thakurs specified in list No. 3 will be kept joint. A scheme for the worship of the thakurs by turns by the co-sharers will be made at the time of the passing of the final decree. The costs of the partition will be borne by the parties in proportion to their respective shares. The parties are required to state within two days whether they desire that the partition should be made by one or more Commissioners.'
3. The question which has been referred to this Bench is whether the order contained in these paragraphs is appealable.
4. It is admitted on all sides that it is not appealable as an order, as it is not included in the list of orders in Section 588 of the Code from which an appeal is given by that section, and the only question is whether it is within the definition of a decree in Section 2 and so appealable as a decree.
5. It has been said by the pleader for the plaintiff that he does not wish to argue that as no separate document has been drawn up and signed, giving effect to the decision of the Court, there has been no formal expression of an adjudication upon the rights claimed, and that point not being raised before us by him or referred to us by the Divisional Bench, we need not deal with it here.
6. Our answer to the question referred to us is that an order in a suit for a partition, which declares the specific rights of the parties and the property to be partitioned, decides that the suit must be decreed, as after such an order the suit could not be dismissed by the Court by which it was made, and is therefore an order which adjudicates upon the rights claimed and the defence set up in the suit, and which, as far as the Court expressing it is concerned, decides the suit within the definition of a decree in Section 2 of the Civil Procedure Code, and is therefore appealable as a decree.
7. I must add that had the point been raised, I should have felt a difficulty in holding that a paragraph in the judgment, not drawn-up in the form of a decree, and not embodied in a separate form, is, within the terms of the Code of Civil Procedure, a decree at all.
8. But the point is not raised before us, and I am not bound to deal with it.
9. I have had considerable difficulty in arriving at a satisfactory conclusion as to the effect that the Legislature intended to give to an order within the terms of Section 396, Civil Procedure Code, directing a partition to be made by Commissioners, as in the case now before us. It is contended that the order of the Court declaring the several parties interested in immoveable property under partition and their several rights therein, amounts to a formal expression of an adjudication upon rights claimed, and that such adjudication, so far as regards the Court expressing it, decides the suit, and consequently that the order is a decree within the meaning of Section 2 of the Code. Section 396, however, provides that the Court in question shall pass a decree in accordance with the report of the Commissioners, if approved of, it would, therefore, seem that that section contemplates that the final decree in the suit should be passed after report made by the Commissioners. No doubt a similar course is provided by Section 215-A in a suit in which it is necessary to take an account. The definition of a decree as given in Section 2, however, specially declares that an order passed in such a case shall be within the definition of that term. I am inclined to agree with the Chief Justice of the Bombay High Court in holding that this part of the definition of a decree in Section 2 is exhaustive and not explanatory [Coverji Luddha v. Morarji Punja I.L.R. 9 Bom. 183 (195,] and in that view, it would not, in my opinion, be impossible to include an order, such as I have described, in a suit for partition as an adjudication deciding a suit. The actual decision of the suit would be when the decree of the Court was finally delivered, and this, it would seem, is declared by Section 396 to be after the report of the Commissioners. The observations of their Lordships of the Privy Council in the case of Rahimbhoy Habibbhoy v. Turner I.L.R. 15 Bom. 155; L.R. 18 I.A. 6 refer to an order in a suit for accounts directing that such accounts be taken, and in considering whether such an order was appealable as a final decree under Section 595, their Lordships held that it complied with all the necessary essentials. Section 265, no doubt, describes as a decree for partition an order which leaves the partition itself to be made by the Collector where the property to be divided is an estate paying revenue to Government, but in such a case the proceedings of the Civil Court are closed when such an order is passed and therefore, so far as that Court is concerned, the order finally decides the suit. The order would consequently be a decree within the terms of Section 2. I observe that Section 265 is reproduced from the previous Code of 1859, whereas the terms of Section 396 are entirely new. The difficulty is increased by the definition of the term 'decree,' as it now stands, having been the result of a further modification of the Code. I think, therefore, that the matter before us is not without much difficulty. No doubt, for the convenience of the parties themselves, it is desirable that an order, such as that now before us, should be regarded as a decree and be a proper subject for appeal; so that the parties, who are in dispute in regard to the amount of their respective shares, may not be put to the expenses of a partition by metes and bounds, when such partition may turn out to be absolutely infructuous if the Appellate Court should find that the shares have been wrongly determined. Consequently, as the larger interpretation is open to us, and this interpretation is decidedly for the benefit of suitors, I think it should be adopted.