P. Chakravartti, C.J.
1. A short point has been urged in support off this appeal though at considerable length. Them has been some citation of authorities, but the point has ultimately to be decided on principle.
2. The facts are as follows. On the 18th of December, 1950, the respondent, Premraj Ganpatraj, brought a suit against the appellant. National Textiles, for recovery of a sum of Rs. 2,36,946-10-2. The suit has been described as an agent's suit against a principal for reimbursement, but, in reality, it appears to have been a claim for commission on account of commission agency dealings. On the 8th of May, 1956, a decree was passed in the suit and, by that decree, Mr. A. N. Sen, a member of the Bar, was appointed a Special Referees on a settled remuneration of 100 gold mohurs, to be paid by the plaintiff in the first instance, to determine what amount was due by the defendant to the plaintiff in respect of the commission agency dealings which had taken place between 1st of January, 1949 and the 18th of December, 1950. Pending the receipt of the Referee's report, further hearing of the suit was adjourned. As regards the time within which the Referee was to make his report and as regards further directions that might be necessary, the decree provided as follows:--
'....it is further ordered and decreed that the said Special Referee do within 4 months from the date hereof, submit a report after taking the accounts aforesaid and do after one month from the date hereof commence his reference aforesaid and this Court doth reserve the consideration of all further directions and of the costs of the reference herein until the said Special Referee shall have made his report''.
3. The appellant was dissatisfied withthat decree and on the 3rd of July, 1956, preferred an appeal. At the time that it filed the appeal, it also applied for a stay of further proceedings in the reference, but by an order, dated the 18th of July 1956, stay was refused. The respondent, however, gave an undertaking that in case it was found in the appeal that the reference was unnecessary and thus the reference proved infructuous, it would pay the appellant all its taxed costs which would be found to have been thrown away.
4. Thereafter, the respondent filed a cross-objection against the decree and the point taken on its behalf was that the learned Judge should have passed a decree in its favour straightway without directing a reference.
5. The time fixed by the decree for submitting the Special Referee's report expired on the 8th of September, 1956. Although, by that time, the Referee had held about sixteen sittings, he was still very far away from the end of the reference. It appears that thereafter on an application by the respondent, the learned trial Judge made an order on the 13th of September, 1956, extending the time for making the report till the 18th of February. 1957. No one objected to that order. Certain meetings were held thereafter, but no report was made within thedate fixed. On 26th of February, 1957, there was a second application on behalf of, the respondent for extension of time to the Special Referee and an order, as prayed for, was made on the 9th of April following. By that order, the time was extended till the 17th of July 1957 and at the same time the remuneration of the Special Referee was increased by fifty gold mohurs.
6. It is against that order that the present appeal was filed. While filing this appeal, the appellant asked for a stay of the operation of the learned Judge's order, granting an extension of time, but star was refused. The respondent opposed the application for stay, but when it was pointed out that, by its own cross-objection, it had objected to the reference and therefore it was unintelligible why it should insist on the reference being continued, the learned Counsel, appearing for the respondent, stated that his client would abandon the cross-objection. Thereupon, the cross-objection was dismissed with costs.
7. In support of the appeal, Mr. Meyer has contended that after an appeal had been filed to this Court against the whole decree passed by him on the 8th of May, 1956, the learned trial Judge had no longer any jurisdiction to grant any extension of time to the Special Referee. He has contended, in the second place, that in any event, the learned Judge did not act justly or properly in granting the extension.
8. On behalf of the respondent, it was contended that the present appeal was not maintainable. It was said that the impugned order had been made under Section 148 of the Code of Civil Procedure and an order, granting an extension of time by virtue of the power conferred by that section, had not been made appealable by the Code. It is quite true that if the matter is to be judged by the Code of Civil Procedure alone, it must be held that no appeal lies from an order of the kind challenged in this appeal. What we have to consider here, however, is whether the order of the learned Judge amounts to a judgment within the meaning of clause 15 of the Letters Patent. Mr. Mitra contended that even Clause 15 could be of no assistance to the appellant, because by the order no question touching the merits of the controversy between the parties had been determined. I do not think that this contention can be accepted. It is quite true that if all that is contended in an appeal from an order granting an extension of time is that, in the circumstances of the case the order had not been properly made, such an appeal may not be maintainable. But if the appellant contends that the Court which granted the extension had no jurisdiction to grant it, being functus officio at the time, while the other side necessarily contends that it had such jurisdiction, an order deciding in favour of jurisdiction decides a question touching, the merits of the controversy between the parties and is, in my view, appealable. I would, therefore, overrule the preliminary objection.
9. On the merits of the appeal Mr. Meyer's chief contention was the first. He said that, as a matter of law, the trial Court could have no jurisdiction over a case which had wholly passed to the Seisin of the Appeal Court by reason of an appeal preferred from the whole decree. If by the order or decree appealed from, any time was fixed for the doing of any particular thing and if any extension of such time was desired, what was in effect desired was an alteration or variation of the terms of the order or the decree. Such alteration or variation, after an appeal had been preferred, could only be made by the Appeal Court and could never be made by the Court of first instance. Were it not so, there would be a conflict of jurisdiction between the trial Court and the Appeal Court, leading, it might be, to much misunderstanding and great confusion, because the Appeal Court would, in any event, hare jurisdiction and if the trial Court also was held to havesimultaneous jurisdiction, conflicting ordersmight often be passed. It was added that event apart from jurisdiction under the law, it was plainly due to the Appeal Court as a matter of courtesy that the trial Court should not attempt to alter or vary in any way an order made by it which had already been submitted by one of of the parties to the examination of the Court of) Appeal. In support of that contention, Mr. Meyer relied principally on a decision of this Court in the case of parmanand Das v. Kripasindhu Roy, ILR 37 Cal 548 (A), and reinforced the citation by referring to the decision of the Allahabad Court in Kasi Kurmi v. Bansraj Kurmi AIR 1938 All 150 (B).
10. I may refer at once to the citations by the respondent. Mr. Mitra referred to a decision of a single Judge of this Court, namely Abdul Rahim v. Tamijaddin Moila 0043/1933 : AIR1933Cal580 and a decision of the Madras High Court in Abdul Shaker Sahib v. Abdul Rahiman Sahib, ILR 46 Mad 148: (AIR 1923 Mad 284) (D), on which it was based.
11. In my view, none of the cases cited quite applies to the present case and none is decisive of the point we have to decide. Three of the cases were concerned with decrees for specific performance of a contract by which a certain time was fixed for the doing of a certain thing and the question before the Court, broadly stated; was whether that time could be extended. Of them, the case in 0043/1933 : AIR1933Cal580 , may be put on one side, because it was not a case where any appeal had been preferred from the decree and because the only question which, fell to be decided was whether after the time fixed by the decree for depositing a certain sum of money, had expired, the trial Court had jurisdiction to extend the time. In all the three other cases there had been an appeal from the decree. The decision in ILR 37 Cal 548 (A), proceeded Oft the broad ground that the only Court which could modify the terms of the decree or extend the time fixed in the decree for its execution or suspend the order made in the decree would be, after an appeal had been preferred, the Appeal Court. It appears that Section 148 of the Code of Civil Procedure, was invoked by the party which was trying to establish the power of the trial Court to grant an extension of time, but the Court held that the section could not be taken to give any power to the trial Court to interfere with or modify the decree after an appeal against it had been filed. The case of : AIR1938All150 , was not a case of a decree for specific performance, but a case of a direction to pay deficit court-fees within a certain time and the question, really agitated, was whether the time could be extended by the appellate Court. In holding in favour of the Appeal Court's power to do so, the learned Judge who decided the case had occasion to remark on the limitations of the powers of the trial Court, brought about by the filing of an appeal, and he based his observations on the decision in ILR 37 Cal 548 (A). The Allahabad case, therefore, adds nothing to the Division Bench ruling of this Court. The decision in ILR 46 Mad. 148: (AIR 1923 Mad 284) (D) proceeded on the footing that a decree for specific performance, conditional on certain things being done within a certain times, was in the nature of a preliminary decree and that in a case where such a decree was passed, the original Court kept control over the action and continued to have full power to make any just and necessaryorders therein including, in appropriate cases, the power to extend the time limited by the decree, although an appeal might have been preferred. It will be seen that the Division Bench of this Court did not proceed on such a view of a decree for specific performance and made no endeavour to dissect a decree of that kind into a preliminary and a final decree. It took the decree to be a final decree and proceeded on the broad ground that after a decree had been brought up on appeal, the only Court, having seisin over it, would be the Appeal Court and that the trial Court, having no longer any seisin over the case, at least so long as the appeal was pending, could not during that period, make any orders by way of extension of time or otherwise.
12. Had the present case been a case of a decree for specific performance, we would be bound to follow the decision in ILR 37 Cal 548 (A). The decree in the present case, however, is not a decree for specific performance, but a decree which does not require any strained construction to be treated as a preliminary decree for accounts. By its plaint, the respondent primarily claimed the ascertained sum of Rs. 2,36,946-10-9, but by prayer (c), it also prayed for an order for accounts, if necessary. Clearly, the learned Judge made his decree in accordance with that prayer, so that there could be no doubt that the decree which he made was a preliminary decree for accounts. I think it need hardly be pointed out that in the case of a preliminary decree, the trial Court retains full jurisdiction to work it out and to give all necessary directions for implementing it, although an appeal may have been preferred from it, unless of course the Appeal Court directs a stay. When, for example, a preliminary decree is passed in a partition suit, the actual partition by metes and bounds proceeds under the direction of the trial Court, although an appeal may be pending and the trial Court can even pass a final decree, thereby finalising the preliminary decree, although such decree is under appeal. It can hardly be contended that if the trial Court can pass a final decree in spite of an appeal having been preferred from the preliminary decree, it cannot pass interlocutory orders.
13. Mr. Meyer, however, contended that he did not desire for one moment to question the power of the trial Court to work out its preliminary decree, despite the pendency of an appeal, so long as it kept to its terms. What he questioned was the trial Court's power to alter or vary the terms of the decree which it had made when the whole of the decree, including those terms, was pending consideration by the Appeal Court. According to him the direction that the Special Referee was to submit his report within four months was a part of the decree and consequently, to extend the time fixed by the decree would be to vary or alter one of, its terms. That he contended, the trial Court had no jurisdiction to do.
14. In my view, there are several answers to this contention. I cannot agree that a direction to a Special Referee or to a Commissioner of partition to make his report within a certain period is a part of the decree, to the extent of making the time fixed thereby the essence of the Court's order. Mr. Meyer, contended that such a direction also was a part of the decree, because, by it, the right of the parties to have the reference concluded within a certain time and, therefore, concluded with such expenditure to them as the pendency of the reference duringsuch time would involve, was determined. Itappears to me that this contention proceeded on a misconception of what 'rights' of the parties in such a context meant. I such a direction was to be treated as a part of the decree, it would have to satisfy the definition of a decree, as given in Section 2(2) of the Code. According to that definition, 'decree' means the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It is perfectly clear from that definition that the rights which are contemplated are the rights connected with or arising out of or relative to the subject-matter in dispute and not any ancillary or subsidiary rights, if they are rights at all, such as the right concerning the time within which a proceeding must be concluded or the costs to which the parties may reasonably be put. Even if a direction to a Special Referee to submit his report within a certain time creates any rights in the parties at all, which I by no means hold, the rights are not such rights as are contemplated by the definition of 'decree' and, accordingly, it cannot be held that such a direction is a part of the decree which cannot be Interfered with by the trial Court when the decree itself is under appeal.
15. But the real answer to Mr. Meyer's contention is that a direction contained in an order or a decree that the Special Referee or the Commissioner of partition is to make his report within a certain time is not a direction) to the parties at all and does not enquire them to do any particular thing or carry out any obligation and, therefore, it decides nothing as between them. The Officer of the Court, acting as the Referee, or a Special Referee, is but an arm of the Court and it is for the sake of the Court's convenience that he is directed to do what essentially is a thing to be done by the Court itself and which, but for the appointment of a Referee, the Court itself would have to do. In essence, therefore, when the time fixed for the submission of a report by a Special Referee is extended, the trial Court grants such an extension to itself or, in other words, takes further time to complete its order or decree. I am unable to see that either of the parties has any vested right in the time originally fixed or that they are entitled in law to contend that, by the grant of an extension of time, the terms of the decree are being altered or their rights under the decree are being affected.
16. It was pointed out by Mr. Mitra that the decree in the present case reserved to the trial Court the power to give further directions and he contended that, by virtue of that reservation, the trial Court continued to be entitled to give further directions, including extension of time to the Special Referee, despite the pendency of the appeal. I do not think that the reservation by itself answers the appellant's point. The point, as will be recalled, is that where the whole decree was under appeal, the trial Court which had passed the decree could no longer have any seisin over the subject-matter of the decree and, therefore, could not alter or vary its terms. The provision reserving the power to give further direction was also a part of the decree and among those of its terms which, it appears, were being challenged in the appeal. If the appellant's broad contention be right, the fact that there is a reservation in the decree itself can be no answer to it.
17. But the contention, to my mind, isanswered by the fact that a direction given by a decree to a Special Referee to submit his report within a certain time is no part of the Court's adjudication on the rights of the parties and, therefore, granting extensions of such time cannot be altering or varying the terms of the decree but would be a step in aid of working out the decree, for taking which the trial Court always retains the power, even after an appeal has been preferred, where the decree concerned is preliminary in form; and, secondly, that the direction is not a direction on the parties at all, but a direction to an Officer who is deputising for the Court and, therefore, any extension of time can only mean that the Court itself was taking further time to work out or implement its order, by which the rights of the parties under the decree, truly regarded, cannot be affected in any way. I would, therefore, hold that, in view of the nature of the decree passed in the present case and the nature of the direction given, the trial Court retained jurisdiction to grant extension of, time to the Special Referee and that the appellant's contention to the contrary cannot be upheld. If that contention were correct the result would be that a party, preferring an appeal from a preliminary decree for partition or amounts, could, after the time fixed by it had expired, get an automatic stay of further proceedings in to or by the direction of the trial Court, although an appeal did not, under the law, operate as a stay and even if a stay might have been refused by the appellate Court, as in the present case it was.
18. The second branch of Mr. Meyer's contention was really not seriously pressed. It was undoubtedly said that, by the repeated extensions of time, the appellant was being put to an expenditure of! unanticipated magnitude and that the protraction of the proceedings was causing unnecessary hardship. The respondent, however, pointed out that the appellant itself had taken no less than thirtyeight days over its own argument before the Referee' and it therefore could not be said that its own contribution to the prolongation of the proceedings was negligible. In a matter of this kind, the Appeal Court would not lightly interfere with the discretion exercised by the trial Judge. He has observed that the reference has turned out to be more complicated than it was thought it would be and there is no reason to think that when he granted the extension, of time, questioned before us, he had not present to his mind the equities in favour of the respective parties and did not hold the balance truly and evenly between them. I do not attach much importance to the ground of costs, because, as I have already pointed out, the respondent has undertaken to pay all the taxed costs of the appellant that may be thrown away, if ultimately it is found in the appeal from the decree that the reference was unnecessary.
19. For the reasons given above, this appeal fails and is dismissed with costs.
S.N. Guha Ray, J.
20. I agree.