1. This appeal is directed against three orders which purport to have been made in course of proceedings in execution of a decree in a suit for partition of joint properties. A preliminary objection has been taken to the competency of the appeal.
2. It appears that the dispute between the parties was referred to arbitration and on the 21st December 1906, a decree was made on the basis of the award of the arbitrators. The arbitrators appear to have suggested that the properties should be divided in proceedings in execution of the decree except one property which they themselves had divided. The Sub-Judge accepted this suggestion and the result was that the preliminary decree which was drawn up directed that the properties which remained undivided be divided in execution proceedings. Protracted investigations have taken place in the execution proceedings and, on two previous occasions appeals were preferred to this Court against orders made in the proceedings on the basis that the orders fall within the scope of Section 244 of the Code of Civil Procedure, 1882, and were appealable as decrees. On those occasions, no objection appears to have been taken to the competency of the appeals. On the present occasion, however, an objection has been urged that the orders sought to be assailed are not appealable as they are interlecutory orders intermediate between the preliminary decree and the final decree which has not yet been made. The learned Vakil for the respondents has contended that these orders cannot be regarded as decrees; first, because, although they purport to have been made under Section 47 of the Code of Civil Procedure, 1908, they could not have been made under that section, and secondly, because, even if they are treated as properly made under Section 47, they do not decide any question relating to the rights of the parties and, therefore, do not embody any adjudication which can be challenged by way of appeal. The learned Vakil for the appellant has contended, on the other haud, that it is not open to the respondents to take any objection to the competency of the appeal, because it was by consent of parties that the preliminary decree directed the investigation of all these matters in the course of execution proceedings. In our opinion, the preliminary objection is obviously well-founded, and it is open to the respondents to take exception to the competency of the appeal, notwithstanding the direction given in the preliminary decree and notwithstanding their omission to take exception to the validity of the appeals filed against the previous orders in the so-called execution proceedings.
3. There is no room for controversy that the order embodied in the preliminary decree was irregular, at least to this extent that the parties agreed to have a determination of questions in execution proceedings which ought to have been tried in the course of a pending suit. It does not follow, however, that such an agreement is invalid in law. In fact, the decisions of the Judicial Committee in the cases of Pisani v Attorney-General for Gibraltar L.R. 5 P.C. App. 516 at p. 522 : 30 L.T. 729 : 22 W.R. 900 and Sadasiva Pillai v. Ramalinga Pillai 2 I.A. 219 : 15 B.L.R. 383 : 24 W.R. 193 show that an agreement between two litigant parties as to the mode of the determination of the questions in controversy between them, different from the mode prescribed by the Legislature, may be binding upon them. But it does not follow that the parties can by mutual consent create a right of appeal where none is allowed by statute. Authority is soarcely needed in support of the elementary proposition that a right of appeal is a creature of statute Lane v. Esdaile (1891) A.C. 210 : 60 L.J. Ch. 644 : 64 L.T. 666 : 40 W.R. 65; Minakshi v. Subramanya 14 I.A. 160 : 11 M. 26 and if no right of appeal has been, allowed by the Legislature, the parties cannot by agreement take matters in controversy to the Appellate Court. This proposition is amply supported by the observations of the Judicial Committee in the case of Pisani v. Attorney-General for Gibralter L.R. 5 P.C. App. 516 at p. 522 : 30 L.T. 729 : 22 W.R. 900: 'It is true that there was adeviation from the cursuscurise but the Court had jurisdiction over the subject, and the assumption of the duty of another tribunal is not involved in the questions. Departures from ordinary practice by con-sent are of every day occurrence, but unless there is an attempt to give the Court a jurisdiction which it does not possess or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, so that a Court of Appeal cannot properly review the decision, such departures have never been held to deprive either of the parties to the right of appeal.' Here, in so far as the parties agreed that the partition was to take place in the course of execution proceedings, they may be held bound by their agreement, but when they invite this Court to hear an appeal which this Court is not competent to hear because no appeal is allowed by law, the conclusion becomes self evident that the agreement does not avail either of the parties By consent of parties we cannot acquire appellate jurisdiction where none has been created by the statute Golab Gao v Chowdhury Madho Lal 2 C.L.J. 384 : 9 C.W.N. 956. The position therefore, is incontestable that it is open to the respondents to urge that the appeal is incompetent. But, even if the respondents were not at liberty to take the objection if would be the duty of the Court to dismiss the appeal which, it cannot be seriously disputed, is incompetent. The result, therefore, is that this appeal is dismissed but there will be no order as to costs.
4. It will now be open to either of the parties to invite the Sub-Judge to draw up the final decree in the partition suit and, when that decree has been drawn up, it will be open to either of them who may be aggrieved by the result, to prefer an appeal to this Court, and to challenge the propriety of interlocutory orders.
5. We may add that the matter is not one of form but of substance. In order that a partition decree may be drawn up, the parties have to pay stamp-duty as prescribed by the Legislature. There are obvious advantages also to the parties if a final decree is drawn up because, by reference to the decree, their rights as determined by the partition may be ascertained without any difficulty or likelihood of dispute. On the other hand, if matters are allowed to stand, as they do in the case before us, it would be extremely difficult, if not impracticable, for both the parties to ascertain their precise rights from the numerous orders recorded in the order-sheet of the Subordinate Judge.