1. This is an appeal from an order recording a compromise or a partial settlement of a suit under Order XXIII, Rule 3, C. P.C. The order appealed against was passed on 8th December 1922. On 15th January 1923 a decree was prepared in pursuance of that order in accordance with the provisions of Rule 3. On the 26th February this appeal was filed only against the order of the 8th December but no appeal was preferred against the decree. A preliminary objection was taken by Mr. Sirkar on behalf of the respondent that the present appeal is incompetent in that the decree having been passed before the appeal was filed an appeal lay from the decree and not from the order which is superseded by the decree: We think this objection must prevail. So far as this Court is concerned it must be now taken to be settled that where a preliminary decree or order is followed by a final decree an appeal does not lie against the former 'after the final decree is passed. All the cases on this point have been cited considered and followed in Nanibala Dasi v. Ichhamoyee Dasi 84 Ind. Cas. 674 : 40 C.L.J. 291. In Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895, the learned Judges observe that under Section 588 of the old Code (corresponding to Order XLIII of the new Code) appeal has been allowed from two classes of orders some of which do not affect the decision of the case and some that do. In both cases the right to appeal from the order is lost after the preparation' of the final decree. In that case the appeal was brought against an order of remand after the final decree was passed in the case. The learned Chief Justice in the course of his judgment laid down the principle that there could be no appeal against an order whether interlocutory or otherwise after the final disposal of the suit. In the case of Nanibala Dasi v. Ichhamoyee Dasi 84 Ind. Cas. 674 : 40 C.L.J. 291, the appeal was preferred against the preliminary decree in a partition suit after the final decree was made. The principle underlying these decisions is stated in Mackenzie v. Narsingh Sahai 1 Ind. Cas. 413 : 26 C. 762 : 10 C.L.J. 113 to be that if the appeal is brought from the preliminary decree after the passing of the final decree which is not appealed from and if the appeal succeeds the result' would be that the final decree which had not been appealed against would have to be indirectly set aside, a state of things the Legislature could never have contemplated, or there would be a final decree binding on the parties in: consistent with the preliminary decree or order.
2. The learned Advocate-General for the appellant concedes that the law is settled as above but he attempts to distinguish the present case on the ground that in the cases above referred to and, those which they follow, some act had to be done and some further steps taken by the Court or the parties before the passing of the final decree whereas in the present case the decree automatically followed the order and, therefore, any variation of the order must ipso facto govern and modify the decree. The distinction suggested is that in cases of remand orders and preliminary decree in suits for partition or account the final decree is independent of the preliminary decree while in a case like the present the decree is dependent on and subordinate to the order which it merely follows and embodies.
3. As no authority directly in point has been placed before us, we have anxiously considered the point, raised in all its aspects but we have not been persuaded that any real distinction as has been suggested exists between the two classes of cases. The question relating to dependent and subordinate decrees was fully considered in the case of Nanibala Dasi v. Ichhamoyee Dasi 84 Ind. Cas. 674 : 40 C.L.J. 291 and is the ratio decidendi of the case of Ram Nath Singh v. Basanta Narain Singh 19 Ind. Cas. 630 : 17 C.W.N. 868 : 18 C.L.J. 209. The latter case is instructive and lays down the proposition that if the appeal is preferred from the preliminary decree before the final decree is passed the later decree should be held to be contingent on the result of the appeal. The principle of dependent and subordinate decree was first adumbrated in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 M.I.A. 203 : 3 W.R.P.C. 11 : 2 Suth.P.C.J. 103 : 19 E.R. 948 as applying to several actions based on the same foundation of right or 'cause of suit' where the first action is challenged before the subsequent actions are decided. The same principle under similar circumstances has been extended to proceedings in the same suit.
4. There is doubtless the distinction as suggested by the learned Advocate-General but on principle the final decree in a suit for partition or accounts or after remand is as much dependent on the preliminary decree which it follows, for its correctness and effect, as the decree in the present case may be said to be on the order.
5. There is another consideration which has weighed upon us in holding that the two classes of cases above referred to stand on the same plane. Section 96, C. P.C., confers the right of appeal from every decree if such right is not otherwise barred. It does not seem reasonable to presume that the Legislature intended that the right of appeal against two proceedings in one suit--the order and the decree--should co-exist. If the decree follows the order it will be no straining of the language to say that the order, and for that matter all previous proceedings, get merged in the decree which is the final declaration of the Court's mind and decision and lose their separate existence.
6. We cannot hold that the appeal from the order alone is maintainable unless we agree with the learned Counsel in holding that as a matter of law if the order appealed against is vacated or varied the decree must be similarly effected. We find no authority or logic in support of this contention.
7. We see no reason why the principle laid down in the case of Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 is not applicable to the present order. The learned Chief Justice in deciding that case made no distinction between interlocutory or other classes of orders and in that view of the case the appeal is incompetent and must be dismissed.
8. We are of opinion that considerations which govern the case of a preliminary and final decree apply with equal force to the case like the present.
9. In our judgment this appeal is incompetent and cannot proceed.
10. Counsel for the appellant has verbally prayed that in the event of our holding against him on this point the appellant may be permitted to convert the present appeal into an appeal from the decree. In view of the fact that there is no authority of this Court directly bearing on the above question and the appellant may have bona fide preferred the present appeal we think we ought to accede to the request and give him the necessary permission as was given in the case of. Nanibala Dasi v. Ichhamoyee Dasi 84 Ind. Cas. 674 : 40 C.L.J. 291. The order we propose to pass is that if the appellant files a certified copy of the decree and puts in the proper Court-fees within two weeks, from this date, this appeal will be registered as an appeal from original decree in default, the appeal will stand dismissed.
11. We think the respondents are entitled, to their costs of the hearing before us We assess such costs at 10 gold mahurs to be paid by the appellant to respondent No. 1 and five gold mohurs to each of the remaining respondents who have appeared.