1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a proceeding for assessment of mesne profits. Mr. Justice Newbould has held that the appeal to the Subordinate Judge was incompetent and he has accordingly not considered the case on the merits. We have arrived at the conclusion that this view cannot be supported and that the appeal must be heard on the merits.
2. The suit was instituted for the recovery of possession of land with mesne profits. It was dismissed by the trial Court on She 25th-January, 1917. On the 19th March, 1918, the Subordinate Judge allowed the appeal and remanded the suit for actual partition of the disputed land and for assessment of mesne profits. When the case came before the trial Court, seven of the defendants namely, defendants Nos. 6-18, contended that the decision of the Subordinate Judge absolved them from liability for mesne profits, This question was considered by the trial Judge on the 9th January, 1919, when, on a construction of the order made by the Subordinate Judge, he held that those defendants had in fact been absolved from liability for mesne profits. He thereupon directed an enquiry in respect of mesne profits payable by the other defendants. A commissioner was appointed in duo course, but, under circumstances which need not be considered at this stage, the commissioner not only considered the question of mesne profits as regards the defendants liable, but also came to determine the mesne profits payable by the defendants Nos. 6 to 12 who had been absolved. When the report of the commissioner came before the Court on the 7th April, 1919, those defendants urged that the question of their liability had been previously determined in their favour and could not be reopened by the commissioner or by the Court. This contention prevailed. As regards the other defendants, the claim for mesne profits was abandoned. The result was that on the 7th April, 1919, an order was made in the following terms : 'The objection taken by defendants Nos. 6 to 12 be allowed and the claim for mesne profits as against them be dismissed on contest; and the claim for mesne profits as against the other defendants be dismissed for non-prosecution.' Then followed the order for costs. This decree, which was the final decree in the suit for mesne profits, is dated the 7th April, 1919, and was signed by the trial Judge on the 14fch April, 1919. An appeal against this decree was preferred by the plaintiff to the Subordinate Judge. The Subordinate Judge allowed the appeal on the merits. A second appeal was then brought to this Court and was heard by Mr. Justice Newbould, It was urged before him that the Subordinate Judge could not hear an appeal against the decree made on the 7th April, 1919, inasmuch as the question of the liability of defendants Nos. 6 to 12 had been previously decided on the 9fch January 1919. This objection was allowed on the authority of the decision of the Judicial Committee in the case of Bhup Indar Bahadur v. Bijai Bahadur (1900) 23 All. 152.
3. There can be no room for controversy under the Code of 1908 that Section 97 provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Apart from this, as pointed out by the Judicial Committee in Ram Kripal v. Rup Kuari (1883) 6 All. 269 and Hook v. Administrator-General of Bengal A.I.R. 1921 P.C. 11, an order made in the course of a suit is final, and cannot be retried by the Judge in the course of the same litigation. In this sense, the order made by the trial Judge on the 9th January, 1919, that defendants Nos. 6 to 12 were not liable to mesne profits was conclusive, and neither of the parties would be competent to challenge its correctness at a later stage of the proceedings.
4. But the question which we have really to decide is somewhat different. There was in this case no decree or formal expression of adjudication of the Court in respect of the liability of defendants Nos. 6 to 12 until the 7fch April, 1919. In such circumstances, time would run, for the purposes of appeal, from the date when the decree was drawn up and signed by the Judge. Instances may be found in the books, where a difficulty similar to what has arisen here had happened. In Khirode Sundari Debt v. Jnanendra Nath Pal (1901) 6 C.W.N. 283 a judgment was delivered in the course of an execution proceeding and the order was incorporated in the same document. No separate decree was drawn up and it was ruled that an appeal was competent if this document was annexed to the memorandum. On the other hand, in the case of Gopal Chandra v. Preonath Dutt (1904) 32 Cal. 175, it was pointed out that the Code contemplated a judgment, whether the case was concluded by a decree or by an order, and that when a judgment had been delivered and had been followed by a decree or an order, both the judgment and the decree or order must be annexed to the memorandum. The appellant would then be entitled to the benefit of the provisions of the Indian Limitation Act, as to the deduction of the time taken up in the procurement of the copies of the judgment and of the decree or order. The same view was taken in the case of Kamala Dasi v. Tampado Mukerji (1910) 15 C.L.J. 498 and has been subsequently adopted by the Patna High Court in Mohesh Kanth Chowdhury v. Ramprosad Pal (1920) Pat. 75. In the case before us, though there was a judgment delivered on the 9th January, 1919, in justification of the course adopted by the trial Judge on that occasion, there was no formal expression of that adjudication till a much later date. We must consequently hold that the appeal to the Subordinate Judge was competent and the second appeal to this Court must be determined on the merits.
5. The result is that this appeal is allowed the deoree of Mr. Justice Newbould set aside and the appeal from appellate decree No. 580 of 1920 restored.