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Bhoobun Moyi Dabea and ors. Vs. Shurut Sundery Dabea and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1885)ILR12Cal275
AppellantBhoobun Moyi Dabea and ors.
RespondentShurut Sundery Dabea and ors.
Cases ReferredBholonath Dass v. Sonamoni Dasi
appeal - civil procedure code (act xiv of 1882), sections 2 and 396--order in partition suit leaving proceedings to be taken in execution of decree. - we are of opinion that no appeal lies in the present stage of the proceedings, but that, if so advised, the appellant can hereafter raise the points which he desires to raise in the present proceedings, the appeal is dismissed, but, under the circumstances, without costs.

Prinsep and Grant, JJ.

1. The matter before us relates to a partition, through the Court, of certain immoveable property held by the parties. The suit was for partition by metes and bounds, On proof that the parties held respectively certain specific shares. The Subordinate Judge was content with passing a decree declaring the parties entitled to partition as holding certain specific shares, but he has reserved the actual partition by metes and bounds until proceedings taken in execution and an enquiry by a Commissioner. The result has been that the enquiry contemplated by the terms of that order and provided for by Section 396 of the' Civil Procedure Code, has been made in proceedings in execution of that decree. Now, as regards the form of these proceedings, we think that they have been mistaken. The proceedings contemplated by Section 396 are proceedings in a Suit, and, as we understand it, before the passing of the decree, in order to enable the Court in that suit to determine exactly the terms of that decree. However, the error, such as it is, is merely on a point of form, and as it has not been made the subject of an objection (and we desire to add that we do not wish it to be understood that if it had been made the subject of an objection, it would have been fatal to the proceedings taken), we think we should regard it in the manner in which it was dealt with in the case of Gyan Chunder Sen v. Doorga Churn Sen I.L.R. 7 Cal. 318 : 8 C.L.R. 415 that is to say, the further proceedings taken after the decree declaring the rights of the several parties should be regarded as proceedings to obtain a decree upon further consideration, the expression used being one which is familiar to the English Courts of law. The lower Court has in these proceedings found, on the report of the Commissioner, that two of the parties are entitled to certain parcels of land, but though it has found that the Other two parties are entitled to the remaining portion, it has refrained at present from declaring exactly the lands to which each of these parties are entitled as between themselves. One of these last-mentioned parties has now appealed to this Court against the order made, giving two of the co-sharers certain specific parcels of land. A preliminary objection has been raised that in the present state of the proceedings no appeal would lie. If the order passed be regarded as an order, it would seem that it is not appealable, as no special provision has been made by Section 588. But it is contended that this order should be regarded as a decree within the terms of the definition given in Section 2. Section 2 declares that a decree means 'the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit.' It is clear that the present order does not decide the suit, although it may determine the position of one of the parties in that suit. But as an authority for the appeal now made to us we are referred to a judgment delivered by Mitter and Macpherson, JJ. in Bholonath Dass v. Sonamoni Dasi ante p. 273 on the 30th July last. In that case the learned Judges held that, in a suit for a partition of immoveable property not being an estate paying revenue to Government, an appeal would lie against an order or decree merely declaring the rights of the parties to certain specific shares, although the principal object of that suit as laid, viz., the particular lands to which each of the co-shares would be entitled, had not yet been determined. It is sufficient for us at present to state that we should feel some hesitation in applying the principle upon which the Court may have proceeded in that case generally to somewhat analogous matters arising in other suits, and as, in our opinion, the order passed does not apply strictly to the case before us, we do not feel embarrassed by that decision. We should not be disposed to hold, as we have been asked to hold in the present case, that any interlocutory order in the course of a suit or proceeding under which the position of some of the parties to the case may have been determined, could properly be made the, subject of an appeal, except under some special provision of the law, until the decree shall have been pronounced, that is to say, until the actual decision of the suit shall have been arrived at. In the present case, although the rights of the Maharani and Nabab Ali, two of the co-sharers may have been determined with regard to certain specific plots, no final order-has yet been passed, because the exact rights of the two' other parties have not been determined. It therefore seems to us that, until the entire matter before the Court shall have been concluded, no appeal would lie.

2. We think it is to be regretted that in dealing with suits for partition of immoveable property not being estates paying revenue to Government, the lower Courts should be in the habit of passing what are termed decrees in the suits containing merely declaratory orders, leaving still open for determination the main issues. Such matters should be decided before any decree is passed, and this would seem to be contemplated by Section 396 which refers to proceedings in a suit. 'We are inclined to think that this mode of dealing with cases of this description arises in a great measure from a desire of the lower Courts to clear their files of such suits as involve tedious and lengthened enquiries, and thus not to lay themselves open to animadversion for dilatory proceedings when their work comes before their executive superiors. As we are of opinion that no appeal lies in the present stage of the proceedings, but that, if so advised, the appellant can hereafter raise the points which he desires to raise in the present proceedings, the appeal is dismissed, but, Under the circumstances, without costs.

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