1. The question submitted for our decision is 'whether in an appeal against the final decree in a partition suit it is open to the appellant to question the correctness of the preliminary order or decree for partition when no appeal was preferred against such order within the time allowed by law.'
2. The first point to consider is whether the preliminary order or decree is a decree within the meaning of Section 2 of the Code of Civil Procedure. The Full Bench case of Dulhin Golab Koer v. Radha Dulari Koer (1892) I. L. R. 19 Cale. 463 is a distinct authority to the effect that such an order is a decree within Section 2, and this view is clearly supported by the recent case of Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (19O0) I. L. R. 43 All. 152 before the Judicial Committee of the Privy Council, in which judgment was given on the 21st July 1900. There it was held that an order upon an issue, 'For what period are mesne profits recoverable' was final and not interlocutory; that it was a decree within the definition of Section 2 of the Code, and consequently appealable under Section 540. Their Lordships then say: 'Treating the question as if it were whether the order under consideration is final or interlocutory in its nature, and testing it by the ordinary principles applicable to such questions, their Lordships think not only that the High Court are right in the particular circumstances of the case, but that there is not any need to rely upon the accident that the District Judge took the convenient course of trying the liability to account in a separate issue and deciding it in a separate judgment. His decision is a final one in its essence, and would be so equally whether it stood alone or was combined with decisions on other points. It resembles in principle a decree for account made at the hearing of a cause, which is final, against the party denying liability to account and is appealable, though it is also in another way interlocutory, and may result in the exoneration of the accounting party or even in the award of a balance in his favour. And it can make no difference in point of principle whether the decision be in favour of or against the liability to account. It is equally final in its effect, and as such equally open to appeal.' If a decree adjudicating upon the question of liability to account be final, a decree in a partition suit, which completely determines the shares of the parties, must equally be so. It is clear, then, that the preliminary order here was a decree appealable and final as opposed to being interlocutory in its nature. I am not dealing with the question whether a statement in a judgment as to rights of the parties where no formal decree has been drawn up and where the declaration of such rights has not been embodied in a formal decree is a decree within the meaning of the Code. That point is not now before us. I would only add for the guidance of Judges in the mofussil that, in my opinion, preliminary orders in partition suits and in suits for account, if they declare the rights of the parties either as to their shares of the property to be partitioned or as to liability to account, ought to do drawn up formally as decrees in compliance with Section 206.
3. But now arises the question submitted to us, and upon this there are two conflicting decisions mentioned in the reference.
4. Neither party suggests that the case is within Section 591, which appears to me to have codified in a statutory form the principles involved in the Privy Council cases of Moheshur Singh v. the Bengal Government (1), Forbes v. Ameeroonissa Begum (2), and Sheonath v. Ramnath (3). The question is whether the principle of these cases applies to a final order, an order which finally decides the rights of the parties as to the shares to which they are entitled, and which is appealable. In Moheshur Singh v. the Bengal Government (1889) 7 Moo. I. A. 283 their Lordships said--the point being whether it was open to the appellant to impugn the regularity of certain proceedings to grant a review--' We are of opinion that this objection cannot be sustained. We are not aware of any Law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the Appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing, whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. We believe there have been very many cases before the tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their consideration, until the whole cause had been decided and brought hither by appeal for adjudication.' The same opinion was entertained by their Lordships in the case of Forbes v. Ameeroonissa Begum (1865) 10 Moo. I. A. 340 and Sheonath v. Ram Nath (1865) 10 Moo. I. A. 413 and again in Shah Mukhun Lall v. Sree Kishen Singh (1868) 12 Moo. I. A. 157 But as I read these judgments they were all cases of interlocutory as opposed to final orders, and the question now before us is whether the same principle applies to the case of a decree, which is final in its essence and effect. In all these cases the orders are referred to as interlocutory orders. If they were intended to apply to final as well as to interlocutory orders, then the present case is covered by their authority, by which we are bound. But, as I have said, I do not so read these cases.
5. It is said that Section 396 indicates that there can be only one decree in a partition suit, and that the decree after the Commissioner's report; but this argument is inconsistent with, and cannot be reconciled with, the view that the first order which declares the shares of the parties is a final and not an interlocutory decree. The Code affords us but little direct assistance on the point, but upon the best consideration which, looking to the Code, to principle, and to the authorities I can give to the case, I am of opinion, when there is in a partition suit a decree declaratory, of the rights of the parties, a decree which is, in point of law, final as regards those rights, and also appealable, and the time allowed for appealing has expired, that decree cannot be challenged upon an appeal from a subsquent decree in the suit, say the decree confirming or dealing with the Corm missioner's report. To hold otherwise would be to extend the time for appealing to an indefinite period, contrary to the period of limitation defined by the Legislature. The inconvenience and costs to the parties of the opposite view is manifest. All the expense incidental to a partition by metes and bounds, of the Commissioner's report and do forth, proceedings which might occupy years, would be thrown away, and though, no doubt, such useless expenditure might, in some cases, be met by special provision as to payment of costs by those who had caused it, such compensation in many cases might prove inadequate, for costs are not always recoverable. I can find nothing in the Code nor in principle which imposes upon me the necessity of arriving at such a conclusion, and I therefore prefer to arrive at one which appears to me to be consonant with convenience, as opposed to one which is calculated to produce endless delay and grave unnecessary expense.
6. In my opinion the question ought to be answered in the negative, and the case with this expression of opinion returned to the Division Bench for ultimate decision; the costs of reference to abide the result.
7. In this suit which is for a partition by metes and bounds amongst certain co-sharers in a certain property, the Subordinate Judge, by his order of the 23rd July 1898, found that the parties to the suit, including the persons made on that date parties to the suit, had certain shares, and he accordingly directed a Commissioner to be appointed for the purpose of making a partition amongst the parties in those specific shares. There was no appeal filed against that order such as the law permits. A final decree has now been passed, and the question referred to a Pull Bench is: 'Whether in an appeal against the final decree in a partition suit it is open to the appellant to question the correctness of the preliminary order or decree for partition when no appeal was preferred against such order within the time allowed by law.'
8. This reference is made because there are two contradictory decisions on this point, a Division Bench of this Court having held, in the case of Boloram Dey v. Ram Chundra Dey (1896) I. L. R. 23 Calc. 279 that no appeal having been made against the preliminary order, it was barred by the operation of the law of limitation and, on the other hand, another Division Bench of this Court having held, in the case of Biswa Nath Chaki v. Beni Kant a Dutta (1896) I. L. R. 23 Calc. 406 the judgment being delivered within a few months of the judgment in the first case and before it had been reported, that it was competent to an appellant, in appeal against the final decree, to reopen the entire case. The first case, I may mention, was a suit for partition, and, therefore, on all-fours with the case now before us. The second case was a suit for dissolution of partnership and an account, in which the Court of First Instance overruled the objection of one of the defendants and found that the plaintiff was a partner and entered into an account. The defendant, however, did not appeal against that order, until after a final decree on accounts taken. The same principle is, however, involved in both cases.
9. The law gives the right of appeal (certain cases being excepted) from the decrees of the Courts exercising Original Jurisdiction (sic)ord the Courts authorized to hear appeals from decisions of these Courts (Section 540, Code of Civil Procedure), and, inasmuch as a decree has been defined to mean the formal expression of an adjudication upon any right claimed or any defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal, it has been held that an appeal lies from an order declaring the rights of parties to certain shares in a suit for partition by metes and bounds and also against an order declaring that certain parties are parties in a suit for dissolution of partnership on an account before the actual decree in the suit has been passed.
10. There was much uncertainty in this respect, but the matter has at last been finally settled, so far as this Court is concerned, by the judgment of the Full Bench in the case of Dulhin Golab Koer v. Radha Dulari Koer (1892) I. L. R. 19 Calc. 463 and their Lordships of the Privy Council have also finally set this matter at rest by their judgments in more than one reported case. These cases, it may be observed, commence from 7 Moore's Indian Appeal cases, page 283, decided in 1859, the last case on the subject being reported in L. R. 22 I. A 1 (S.C.), I L. R. 17 All. 112, decided in 1894. So far as regards the right of appeal, the law is now settled. The question raised on this reference, however, is whether, the right of appeal existing and no appeal having been made, it is competent to a party in the suit to appeal against the final decree on the whole case, as if he had no such right of appeal at an intermediate stage. I may observe that though, by reason of the definition of a decree, this right is given, a decree, as explained in Section 206 and the following sections of the Code, clearly means the final decree in the suit, for, under Section 206, it is, stated that the decree shall set out the particulars of claim in the suit and shall specify the relief granted or other determination of the suit. From this I have always understood (and this has been the practice of our Courts) that, notwithstanding the definition of the expression 'decree' first given in the Act of 1879 in amendment of the then existing Code of Civil Procedure, a decree within the terms of Section 206 means the final. decree in the suit, and it is suck a decree which is contemplated in giving a right of appeal under Section 540. There is only one decree within the terms of Chapter XVII in the suit, and that is the final decree. Any order passed in the course of the trial of a suit, though it may, in some respects, be an adjudication of the rights of the parties, if it does not finally dispose of the suit, is not a decree within the terms of that chapter because, with any other findings already arrived at in the suit, it must be embodied in the decree drawn up in accordance with Section 206.
11. The terms of Section 396 are also significant in connection with the matter now under consideration. That section provides that the Court, after ascertaining the several parties interested in the property and their several rights therein, may issue a commission to such persons as it thinks fit to make a partition according to such rights, and it further provides that, on consideration of the Commissioner's report and any objections thereto, the Court shall either quash the same and issue a new commission or pass a decree in accordance therewith. That decree is the decree within the terms of Section 206 and, in my opinion, it is also the decree within the terms of Section 540. There is no provision of the law taking away a right of appeal on the entire case, when such a decree has been passed.
12. In the same manner, in an administration suit, Section 213 declares that the Court before making a decree shall order such accounts and inquiries to be taken and made, and give such other directions as it thinks fit, and under Section 394 the Court may issue a commission to any person directing him to make such examination or adjustment of accounts, as it may consider to be necessary.
13. So also, in a suit for dissolution of partnership, Section 215 declares that the Court, before making its decree, may pass an order fixing the day on which the partnership shall stand dissolved and directing such accounts to be taken and other acts to be done as it thinks fit. Now it would be impossible for a Court to declare accounts to be taken, unless it had previously found that the parties were partners and, as such, entitled to receive or bound to render accounts.
14. Similarly, Section 215A declares that ' when a suit is for an account of pecuniary transactions between a principal and agent and in all other suits not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should he taken, the Court shall, before making its decree, pass an order directing such accounts to be taken as it thinks fit.' Now, in such a suit, it may happen, and constantly does happen, that a party denies his liability to account, and, if an order be passed against him, although he may have the right of appeal because the order is within the definition of a decree, still no decree is passed until an account has been taken showing the amount due to the plaintiff. These matters were all fully considered in the case of Biswa Nath Chaki v. Bani Kanta Dutta (1896) I. L. R. 23 Calc. 406 by a Bench consisting of myself and Mr. Justice Hill, and we also considered several judgments of the Privy Council referred to in our judgment bearing on this point, as well as the rules laid down in several well-known treatises on the interpretation of statutes. No authority has been shown to us for a contrary view except the judgment in the case of Boloram Dey v. Ram Chundra Dey (1895) I. L. R. 23 Calc. 279 In that case the authorities on which we relied were not reported or considered. The argument ob inconvenienti has, however, been pressed upon us on the ground that it is not reasonable to require a party to go to the expense of an inquiry into accounts or to settle a partition by metes and bounds when it was open to him to stop that inquiry and the expense consequent thereon by asserting his rights, if he still maintained that he had them, by exercise of the right of appeal given him under the law. It seems to me that instances may be given where a party may reasonably abstain from the exercise of this right of appeal without any prospect of putting his adversary to such an expense and, at the same time, reserve to himself the right of appeal, once for all, instead of delaying the proceedings and appealing on two separate occasions, and it may be added that this very objection was considered by Hill J. and myself in the case before us, for we pointed out that in an appeal against the final decree, a party who has not exercised his right of appeal against the intermediate finding or decree against him ' would certainly suffer in costs in consequence of his having without objection allowed the subsequent proceedings to take, place,' and, as an authority for this, we referred to the concluding remarks of their Lordships of the Privy Council in the case of Forbes v. Ameeroonnissa Begum (1865) 10 Moo. I. A. 340, 861 Their Lordships there stated, considering that the appellant might have appealed against the order and that his conduct in the subsequent proceedings in the Court below had not been satisfactory, that they ' are not disposed to recommend that he should have costs in those proceedings agains the opposite party.' There would, therefore, be protection in such a case to the respondent. If, however, the position be considered in another point of view, it does not seem altogether unreasonable to grant the right of appeal on the whole case. By the exercise of his right of. appeal against what I may term the intermediate decree, the proceedings in the suit would be prolonged, if that appeal were unsuccessful, and, if he had good grounds to appeal against the final decree, the appellant would be put to the expense of two appeals. But, if there was only one appeal on the whole case, it would be dealt with by the Appellate Court once for all, while if the appellant succeeded on the point decided by the intermediate decree, he might, as I have already pointed out, suffer in costs because he had allowed proceedings to be held which he might have prevented, if he had exercised his right of appeal at once against the intermediate decree. In my opinion it would not be right or proper to allow the argumentum ab inconvenienti to prevail against the terms of the law as expressed in the sections of the Code of Civil Procedure to which I have referred, and I would add that it would be very injurious to litigants, if the practice of the Courts which has recognized, this right of appeal were suddenly altered so as to deprive them of a right which they have been led to believe existed and which they intended to exercise.
15. For these reasons I am of opinion that the case of Biswa Nath Ohaki v. Bani Kanta Dutta (1896) I. L. R. 23 Calc. 406 is rightly decided, and I would answer the question referred to us in the affirmative.
16. The question referred to us for determination in this case is--
17. Whether in an appeal against the final decree in a partition suit it is open to the appellant to question the correctness of the preliminary order or decree for partition when no appeal was preferred against such order within the time allowed by law.
18. There is no provision in the Code of Civil Procedure or in any other enactment bearing directly upon this question. It is argued for the appellant that as the final decree for partition incorporates with it the preliminary order or decree, and is based upon that order, in appealing against the final decree, the appellant is entitled to question the correctness as well of the actual allotments made as of the determination of shares upon which the allotments are based. It is further argued that the appellant had this right under the old law, as is clear from the cases of Moheshur Singh v. the Bengal Government (1859) 7 Moo. I. A. 283 Forbes v. Ameeroonessa Begum (1865) 10 Moo. I. A. 340 and Shah Mukhun Lall v. Sree Kishen Singh (1868) 12 Moo. I. A. 157 and there being no express provision in the present law taking away that right, it cannot be held to be taken away by any implication arising from the definition of the term 'decree' in Section 2 of the Code of Civil Procedure, or from the provisions of Section 591 of the Code. And the case of Biswa Nath Chaki v. Bani Kant a Dutta (1896) I. L. R. 23 Calc. 406 which gave effect to considerations like the foregoing, is relied upon in support of the appellant's argument.
19. On the other hand, it is argued for the respondent that, as the preliminary order issuing a commission after ascertaining the several rights of the parties interested in the property to be partitioned as contemplated by Section 396 of the Code, is a decree within the definition of the term in Section 2, and is appealable as such under Section 540, as has been held by a Full Bench of this Court in Dulhin Golab Koer v. Radha Dulari Koer (1892) I. L. R. 19 Calc. 463 If it is not appealed against within the time allowed by law, it becomes final and conclusive, and its correctness cannot be questioned in the appeal against the final decree. It is further argued that as Sections. 591 and 629 of the Code expressly provide that certain orders may be either appealed against immediately or taken exception to in the appeal against the final decree, the natural inference is that, if the Legislature intended to leave an order coming within the definition of a decree similarly open to question in the appeal against the final decree, it would have expressly said so. Moreover, it is urged that the opposite view would lead to most inconvenient results. Thus a preliminary decree for making a partition or for taking accounts may be carried out by an investigation extending over a long time and entailing much expense; and, if it be open to any party to question the correctness of the preliminary decree in an appeal against the final decree, the time and trouble taken, and the expense incurred, in carrying out the preliminary decree, will go for nothing. As for the cases cited on the other side, it is said that they ware decided under the old law, and that as that law has been altered by the introduction of a more comprehensive definition of the term ' decree,' those cases do not govern any case under the present law, except so far as that law ha3 embodied the principle laid down by them in Sections 591 and 629 of the Code of Civil Procedure. These are reasons which are no doubt entitled to careful consideration; and it is for reasons such as these that it was held in the case of Boloram Dey v. Ram. Chundra Dey (1895) I. L. R. 23 Calc. 29 that the correctness of a preliminary decree for partition, which has not been appealed against within the time allowed by law, cannot be questioned in an appeal from the final decree.
20. After considering the arguments on both sides, I am of opinion, that the view contended for by the learned vakil for the appellant is correct.
21. In appealing against the final decree in a partition suit, the appellant must be deemed to have the right of appealing on the whole case, not withstanding that he might have appealed against the preliminary decree dealing with a part of the case, namely, the part relating to the determination of the shares of the parties. That right has not been taken away by any express, provision of the Code; nor, in my opinion, has it been taken away by necessary or sufficient implication arising from Sections 591 and 629 of the Coda; nor is it sufficient to say that the cases of Forbes v. Ameeroonissa Begum (1865) 10 Moo. I. A. 340 and Shah Mukhun Lall v. Sreekishen Singh (1868) 12 Moo. I. A. 157 are distinguishable from the present case by reason of their being decided under the old law, because the order, the correctness of which was held to be open to question in the appeal against the final decree in each of those cases, was held by their Lordships of the Privy Council to be appealable, just as much as the preliminary order or decree in a partition suit is under the present Code. In the last-mentioned case it was said: ' Their Lordships think that the question as to the interest is open in this appeal, though the plaintiff might have appealed, and did not, from the interlocutory decree on the point.' It is true that the orders in question in both the two cases cited above were interlocutory orders or decrees, in the sense that they did not dispose of the cases; but so is the preliminary decree in a partition suit an interlocutory decree, as it does not completely dispose of the case. That is clear from Section 396 of the Code. The principle upon which the respondent's contention is mainly based is that, where a preliminary order in a case is appealable as a decree, and is not appealed against within the time allowed by law, its correctness cannot be questioned in an appeal from the final decree in the case. Buts that principle is nowhere affirmed in the Code; and it is expressly denied in the passage quoted above from the judgment of the Privy Council in Shah Mukhun Lal v. Sreekishen Singh (2). The argument based upon considerations of convenience noticed above is no doubt the strongest argument in favour of the respondent's view. But when that view is opposed to the decision of the Privy Council in the two cases cited above, which we are bound to follow, I am unable to adopt it as correct.
22. I should add that the argument based upon considerations of convenience is not altogether without an answer, nor are the, considerations of convenience all in favour of the respondent's view. If by reason of a party successfully impugning the correctness of the preliminary decree for partition in an appeal from the final decree, the partition proceedings have to be commenced de novo, the Court may compensate all the other parties by making the appellant bear the costs that are thrown away. On the other hand, if it be held that the law renders it imperative on every party to appeal from a preliminary decree, by which he may conceive himself aggrieved, under the penalty, if he does not so appeal, of forfeiting for ever the benefit of the consideration of the Appellate Court, there will follow many more appeals from preliminary decrees than would otherwise be the case. It is easy, moreover, to imagine cases in which, if a party is under no such imperative necessity of immediately appealing against a preliminary decree and can safely wait to see what the final decree may be, he may, notwithstanding that he might have felt somewhat aggrieved by the preliminary decree, in the end find little reason to complain of the final decree. Thus against the preliminary decree in a partition suit, a party may have a slight objection as to the extent of the shares, or against a similar decree in a suit for account, he may have a slight objection as to the period over which the account is to extend; but when the final decree is made, he may not have reason to complain, having regard to the nature of the allotments made in the one case and to the amount decreed in the other; and so eventually no appeal may be preferred against the final decree, and thus time and trouble may be saved.
23. For the foregoing reasons I would respectfully dissent from the view taken in the case of Bolaram Dey v. Ram Chandra Dey (1895) I, L. R. 23 Calc. 279 and agreeing with the decision in the case of Biswa Nath Chaki v. Bani Kanta Dutta (2) I would answer the question referred to the Full Bench in the affirmative.
Ameer Anl J.
24. I am also of opinion that the case of Biswa Nath Chaki v. Bani Kanta Dutta (2) (1896) I. L. R. 23 calc. 406 was rightly decided, and that the question referred to us should be answered in the affirmative.
25. As I agree with the reasons given by Prinsep and Banerjee JJ. for arriving at this conclusion, I do not think it necessary to go over the same ground. I would only add that, although under Section 2 of the Civil Procedure Code [as interpreted by the Full Bench in the case of Dulhin Golab Koer v. Radha Dulari Koer (1892) I. L. R. 19 Calc. 463 ] certain orders made in the course of a suit are appealable, there is nothing to show that the Legislature has taken away the right to question, upon an appeal from the main and final decree, the propriety of such orders, if they are not appealed against separately within a certain time.
26. In suits for partition, administration, dissolution of partnership, etc., the declaratory orders are made in the first instance with the object of forming a basis for further proceeding. Such orders are by no means of a definitive character; in practice they are often modified by the Court upon application by the parties It would be inexpedient in my opinion to embody such orders in formal decrees or to compel parties to appeal therefrom whether they wish or not. In many cases the objection to the declaratory order disappears on the final decree.
27. I agree with the judgment of His Lordship the Chief Justice.
28. It appears to me that, if a preliminary order or decree for partition in a partition suit be a decree as defined in Section 2 of the Civil Procedure Code, it necessarily follows that it is not open to an appellant to question the correctness of this decree after he has allowed the period of limitation for appealing against such a decree to pass without appealing against it.
29. In the Full Bench case of Dulhin Golab Koer v. Radha Dulari Koer (1892) I. L. R. 19 Calc. 463 it has been decided that a preliminary order or decree in a partition suit, declaring the specific rights of the parties in the properties to be partitioned is a decree and appealable as such. The question of the correctness of this decision is not before us, and as it is the decision of a Full Bench, we are bound to follow it. That being so, it appears to be certain that the present appellant cannot now be allowed to impugn the correctness of the Lower Court's decree of the 23rd July 1898, as he seeks to do.
30. The cases which have been cited to us by the appellant other than the case of Biswa Nath Chalfi v. Bani Kant a Dutta (1896) I. L. R. 23 Calc. 406 which, in my opinion, has been wrongly decided, are all cases decided before the passing of the present Civil Procedure Code, and, therefore, do not seem to me to be relevant to the question we have now to decide.
31. I would therefore answer the question referred to us in the negative.
32. S. S. G.