Ram Narain Prasad Sah v. Ramji Prasad Sah And Others Opposite Party.

Raj Kishore Prasad, J.:— This application in revision by the plaintiff is directed against an order passed on defendants' petition dated 26-8-54 simultaneously with and in the judgment itself, which the Court passed on 19-11-54, under issue No. 19 in Partition Suit 191 of 1950 and M.S 14 of 1951, both of which were heard together by Mr. K.B Verma, 1st Additional Subordinate Judge at Motihari.

1. This application raises an unusual question, which is of rare occurrence. The plaintiff brought two suits against the defendants. The first suit was a partition suit, which he brought against his brother, defendant 1, and his sons, for partition of his 8 annas interest in the properties, and for rendition of accounts. The plaintiff's case was that he and the defendants remained joint till Bhado 1352 Fs., which corresponds to August, 1942, when they separated in mess, and some movables were divided, but some other movables remained joint, and the immovable properties were not partitioned and they remained joint.

2. The plaintiff's further case was that all the family documents concerning money-lending business, cultivation etc., remained with defendant 1, and he had realised various debts, as given in the plaint, and was evading sending account of the same to the plaintiff. The estimate of the plaintiff was that the defendants had realised about one lac of rupees. The plaintiff, therefore brought the partition suit, claiming half share in the properties in question, and also prayed for directing defendant 1 to render accounts from 1349 Fs. and also for a decree for partition of the standing and the future crops.

3. The second suit was a money suit for contribution. This suit the plaintiff brought against his brother, defendant 1, only. In this suit the plaintiff's case was that the defendant was liable to pay various amounts after partition, which he did not pay, and the plaintiff was compelled to pay the same, and as such the plaintiff brought the suit for contribution and claimed the amount paid by him from defendant 1 with interest.

4. The two suits were tried together, and on the pleadings of the parties in the two suits various issues were framed; one of them was issue No. 19, which was: “To what relief, if any, is the plaintiff entitled?”

5. During the pendency of the aforesaid partition suit an application was made for appointment of a receiver in respect of the disputed properties, and this matter was compromised between the parties, and by an agreement between them it was decided on 15-9-52 that the plaintiff will be put in possession of all the lands in suit, excepting certain lands mentioned in the written statement of defendant 1, and the plaintiff in lieu thereof shall deposit a sum of Rs. 22,837 per year, as half share of the produce of the land, which belonged to the defendants.

6. It was further agreed that the plaintiff shall come in possession of the properties on the 1st of Baisakh 1350 Fasli, corresponding to 31-3-53. There were other conditions also, but they are not material.

7. On 21-5-53 the plaintiff filed a petition praying to direct defendant 1 not to interfere with plaintiff's possession over the lands, which had been entrusted to him for cultivation.

8. This petition was taken up on 26-8-53, and the Court after considering the defendant's petition of rejoinder to the same observed that the plaint was entitled to take possession of all the lands suit, except some, as agreed to between the parties and, therefore, the defendants could possibly have no objection to the same, and as such the defendants were directed not to interfere with the plaintiffs possession with respect to the lands in suit.

9. On 12-9-51 the plaintiff filed another petition stating that in village Bhaisa jute crop has been grown by him over plot 2206, and the same had been forcibly cut, and taken away by defendant 1, in spite of the resistance of the plaintiff servants.

10. On 14-9-53 the defendant 1 filed a petition admitting to have cut and removed the jute of plot 2206, but he said that he did so, because it has been grown by him. Both the petitions were taken up by the Court below on 26-9-53, and the Court rejected the prayer of the defendant that the plain, tiff may be asked to deduct the proportionate Honda a rent of plot 2206, as the defendant had removed the jute crop of the same. The learned Subordinate Judge, however, permitted the plaintiff to file a criminal case against the defendant and his associates. Against this order the defendants have moved this Court in Civil Revn. 2 of 1954, and the same has been admitted, and is pending disposal.

11. On 9-11-53 the plaintiff again filed a petition stating that he has not been allowed to cultivate and harvest the produce of certain lands described in his petition, and, therefore, he prayed that proportionate reduction be ordered to be made out of the amount to be deposited by him towards the Hunda rent, and he also prayed that the defendant should also be ordered to compensate the plaintiff to the extent of half the produce enjoyed by them.

12. The Court below rejected this petition, because it said that the plaintiff was appointed manager, or hundadar of the lands, and if he has not been allowed to cultivate, or harvest the produce of the same, the fault was his, and this cannot be a ground for reducing the proportionate amount, which was to be deposited by way of hunda rent. He further observed that even if the plaintiff's contention was correct, the course open to him under the law was to prosecute the person, who has nor, allowed him to cultivate, or harvest the produce of the land.

13. On 22-11-53 the plaintiff filed another petition stating that it was not possible for him to manage the lands entrusted to him, and so a receiver may be appointed in his place to manage the properties.

14. But this petition also was rejected by the Court, because it considered that the plaintiff cannot be allowed to run away from the responsibilities taken by him at least till the end of the agricultural season, and if a receiver would, at all, be appointed, for managing the lands, it would be done from, the beginning of the next agricultural year. All these petitions were considered by the Court on 24-11-53, and were rejected, as stated before.

15. On 19-2-54 defendants 1 and 2 filed a petition stating that the plaintiff be directed to deposit the hunda rent of Rs. 22,837, which he had agreed to deposit as half share of the defendants. This petition was taken up by the Court below in presence of both parties on 30-4-54. The order passed by the Court below on this date is important, and, therefore, I reproduce the same:

“It is urged on behalf of the plaintiffs that due to the defendants' trouble he has not been able to get the full usufruct and so it is difficult for him to deposit the full rent. He says that he is prepared to deposit the sum on accounting. The case of the plaintiff cannot possibly be accepted.

When he was appointed as hundadar of the entire land and if he has not been able to cultivate or harvest the produce of the same, the fault is his and this cannot, in my opinion, be a ground for his not depositing the hunda rent. Even if it be accepted that the plaintiff's contention is correct still the course open to him as hundadar of the lands in dispute was to prosecute the wrong doer or to take such other civil or criminal step as he thought fit.

In this view of the matter the plaintiff's contention is ruled out. It is admitted that the plaintiff was appointed hundadar and he was directed to deposit a sum of Rs. 22,837 per year as half share of the produce of the land which apparently belonged to the defendants. The hunda was to begin from the 1st of Baisakh 1360 Fs. and so it is clear that the plaintiff has completed one year as a hundadar on 30th of Chait 1361. The plaintiff is, therefore, in duty bound to deposit the above amount. He is, therefore, directed to deposit the amount within a month.”

16. The plaintiff did not take any step to get this order vacated. On 1-6-54 defendants 1 and 2 filed a petition stating that the plaintiff was evading to deposit the hunda rent and disobeying the Court's order and also putting these defendants to troubles and, therefore, prayed that legal steps may be taken against him and also that the hunda settlement, which the plaintiff got from 1st Baisakh 1361 to 30th Chait 1362 Fs. be cancelled.

17. The defendant filed other petitions also, on which the Court on 1-6-54 ordered that all these petitions be put up when moved. On 26-8-54 the defendants again filed a petition stating that the plaintiff was ordered to deposit Rs. 22,837, the share of the defendants, and other hunda rent in Court, but in spite of the Court's order the plaintiff did not do so, and therefore they prayed that the plaintiff may be ordered to deposit them in court, and they further prayed that the plaintiff may be ordered not to use the produce of the defendant's share in the standing crops on the disputed lands.

18. On this petition the Court ordered ‘put up when pressed or moved’. To this petition of the defendant a counter petition was filed by the plaintiff on 1-9-54. The defendants' petition dated 26-8-54, and the plaintiff's counter petition dated 1-9-54 were both taken up by the Court below on 2-9-54, and after hearing the parties the Court ordered: “Heard lawyers. If ‘necessary, order will be passed at the time of the judgment’.”

19. The learned Subordinate Judge decided the partition suit, and the money suit, which were heard together, by is judgment dated 19-11-54, and under issue 19 he passed order on the petition filed by the defendants on 26-8-54, and incorporated it in the judgment itself, and as such it forms a part of the judgment, although in the order portion of the judgment there is no mention about the direction given by him in the earlier part of the judgment under issue No. 19 regarding the deposit of Rs. 22,837 in Court regarding which he gave the following direction in his judgment:

“I direct that the plaintiff should deposit the hunda rent being the share of the defendants at an early date. I also direct that if the plaintiff does not deposit the same in Court, the amounts as due till the final decree, shall be adjusted at the time of the final partition in the shares of the parties’.”

20. It is against this portion of the direction given in the judgment that the present civil revision has been filed by the plaintiff.

21. The learned Subordinate Judge decreed the two suits in part, and in the order portion passed the following order: “Both the suits be decreed in part as observed above………Let a preliminary decree be accordingly drawn up in the partition suit………” The judgment of the Court below dated 19-11-54 was followed by a preliminary decree which was drawn up. I may mention here that none of the two parties have preferred any appeal against the preliminary decree itself.

22. Mr. Mahabir Prasad, the learned Advocate-General, appearing for the petitioner, has contended that the direction underlined (here single quoted Ed.) by me above, given in the judgment on 19-11-54 is without jurisdiction, because the Court had no jurisdiction to give the underlined (here single quoted Ed.) direction, firstly, because no such prayer was made by the defendants in their petition dated 26-8-54, and, secondly, because the plaintiff was not heard on this matter, and, therefore, he had no opportunity to meet the order which he intended to pass-In my opinion, there is no substance in this contention. Rightly or wrongly the order dated 30-4-54 was passed by the Court below in presence of both the parties, by which the plaintiff was directed to deposit the hunda rent as agreed to between the parties, and the Court below was not prepared to listen to the objections of the plaintiff asking for reduction of the amount.

23. The order dated 30-4-54 may be right or wrong, but it has become final, as the plaintiff did not choose to get it vacated. When that order has become final I do not think it is open to the plaintiff to move this Court in revision against the subsequent order passed on 19-11-54. Unless the order dated 30-4-54 is vacated, it is not open to this Court to vacate the order dated 19-11-54, even if it could do so under Section 115 of the CPC.

24. The grievance of Mr. Mahabir Prasad that the underlined portion of the order could not be passed by the Court below is not tenable also because it is always in the inherent power of a Court to pass such order as it thinks proper for enforcing the obedience of its order. It is not necessary for a party to suggest to a Court what order it should pass for compliance of its order, and what penalty it should impose on a party, if that party does not comply with the order of the Court.

25. In my opinion, therefore, the Court below had complete jurisdiction to pass the penultimate order which it did. The order, in the circumstances of the case, cannot be said to be unfair, because the liability of the plaintiff had become final by the order dated 30-4-54, and now the only question which remained was the making of the deposit by the plaintiff, and therefore the court rightly directed that till the final decree the amount should be deposited by the plaintiff, and on his failure to do so the amount would be adjusted in the shares of the parties and this matter would be considered at the time of the drawing up of the final decree.

26. Mr. Kailash Roy, appearing for the defendants opposite party, has also contended that the order dated 30-4-54 has become final as the plaintiff did not take any step to get it vacated, and, therefore, he rightly contended that as far as the question of liability of the plaintiff to pay that amount is concerned is final as long as the order dated 30-4-54 is not vacated by appropriate procedure known to law. In my opinion, therefore, the contention of Mr. Mahabir Prasad must be rejected.

27. Mr. Roy has submitted that the order dated 30-4-54 is a part of the judgment dated 19-11-54, and it has been incorporated in the judgment which is followed by a decree, and that decree, therefore, will cover all the antecedent matters, and an appeal is provided under S. 96 of the Code against such a preliminary decree, and on Appeal being preferred against the preliminary decree, the question of the liability of the plaintiff to pay the amount, or the correctness, of the order dated 30-4-54 and the refusal of the Court below to investigate the question regarding the non liability of the plaintiff to pay the amount as agreed to before because of not getting possession over a portion of the properties, or because of the attitude of the defendants in cutting away the crops of the disputed lands will be considered.

28. But as long as there is no appeal against the preliminary decree the order dated 30-4-54 cannot be agitated, and it has become final. Mr. Mahabir Prasad in reply has contended that an appeal lies against a decree no doubt, but an appeal does not he against a judgment, much less against an order passed in the judgment, or even against a finding or direction given in a judgment, and as such this matter could be considered only on an application in revision, and not on an appeal.

29. On the submissions of both sides, therefore, the question which arises for our determination is whether the direction dated 19-11-54, which is a part of the judgment dated 19-11-54, is appealable? This question is not free from difficulty. But, in my opinion, on the facts as they are, it must be held that as an appeal is provided against a preliminary decree, an appeal lies against the preliminary decree, and on such an appeal being filed, the correctness of the order dated 30-4-54, and of all other orders passed after the institution of the suit and before the preliminary decree regarding the liability or non-liability of the plaintiff to pay the entire hunda rent or a portion of it can be gone into.

“‘Decree’ has been defined by Section 2(2) of the CPC thus: ‘Decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final………Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

30. The words ‘any of the matters in controversy in the suit’ have been interpreted to mean such matters as have been brought up for adjudication by the Court by the pleadings in the case so framed so as to include them either in the beginning or by amendment made later with the sanction of the Court. It is essential to bear in mind that it is not enough that there is a determination or even a conclusive determination of the rights of the parties, but that determination must be on matters in controversy in the suit.

31. Mr. Mahabir Prasad, in support of the above proposition of law, has placed reliance on Nandesam Chowdari v. Balakrishnamma, 1939 Mad 897 (AIR V 26) (A), and, has contended that it will not do to bring up new matters by an application, and then to contend that those very matters were to be adjudged on the footing that by the application itself they became matters of controversy in the suit. His contention, therefore, is that the present controversy, namely, the liability of the plaintiff to pay the hunda rent for the share of the defendant did not form a subject-matter of any of the two suits, and this matter was brought before the Court only by an agreement by the parties, and by an application filed by the defendants the Court was asked to pass the order which it did, and, therefore, this cannot come within the definition of ‘decree’ as it was not a matter in controversy in the suit.

32. The case cited by Mr. Mahabir Prasad has no application to the present case, because in that suit a preliminary decree had been passed between A and B, by which B was declared entitled to a half share in these items of family property, which had been allowed to C under partition. After the preliminary decree A made an application asking, the Court to exclude from partition, or to allot certain items to the share of C which had been, sold by C to A during the pendency of the suit.

33. The Court rejected the petition and the question which arose was, whether this order rejecting the petition of A amounted to a decree, and was, as such appealable. The Court held that as those items were never in controversy, the order rejecting the application was not a decree, and was, there-lore, not appealable.

34. It was held that the order of the learned subordinate Judge was one that did not deal with the matter in controversy in the suit, and, therefore, could not be regarded as a decree. The case, therefore, has no application to the present case, inasmuch as in the present case the matter was brought before the Court after the institution of the suit and before the passing of the preliminary decree.

35. The question, therefore is, can the present matter be considered a ‘matter in controversy in the suit’, so as to form a part of the preliminary decree. In order to decide it, it is necessary to know what is the nature and scope of a suit for partition and accounts brought by a member of a joint Hindu family.

36. A member of a Hindu family suing for partition and for the profits on his share is really suing for an account of profits received by the manager, or the person, in possession, so that the proceeds so received by the latter, which are also divisible property, may be divided and his share therein also given to him. Such a sharer has a clear right to an account of the profits received by the person in possession of the whole, and to be awarded his share thereof, not as mesne profits received by a person in wrongful possession, but as appurtenant to the plaintiff's right in his share of the lands.

37. To treat the claim for an account of the proceeds of the family estate as a claim for mesne-profits is entirely wrong. ‘Mesne profits’, according to the definition given in Section 2(12) of the CPC) means those profits, which “the person in wrongful possession actually received, etc.” These provisions are intended for and are applicable to suits for land or other property, in which the plaintiff has a specific interest, and not to a suit for partition, where he has no specific interest until decree.

38. In a partition suit, brought by a member of a Hindu family, the plaintiff is not ordinarily entitled to claim an account of past profits, but he is entitled to have an account taken of the profits, of the properties subsequent to the date of the suit. The fact that the plaint in a partition suit does not contain a specific prayer for profits from the date of the suit does not preclude the Court from entertaining the plaintiff's claim for such profits, and from determining the liability for such profits at the time of the preliminary decree.

39. Even where the preliminary decree in such a partition suit does not provide for profits subsequent to the date of the suit and does not contain a direction that the defendants should be liable for profits, this does not preclude the Court from entertaining the plaintiff's claim for such profits at the stage of the final decree.

40. When, therefore, the plaintiff asks for establishment of his right to a share in the lands, what is appurtenant to it namely, a right to account, need not be separately asked in the plaint (vide Pirthi Pal Singh v. Jowahir Singh, 14 Ind App 37 (PC) (B), Ramasami Aiyar v. Subramania Aiyara 1923 Mad 147 (AIR V 10) (C) and Raghava Mannadiar v. Theyyunni Mannadiar, 1947 Mad 108 (AIR V 34) (D)). But the claim for mesne profits stands on a different footing.

41. As held in Mohd. Amin v. Vakil Ahmad, 1952 SC 358 (AIR V 39) (E) if there is no demand for mesne profits in the plaint, the claim cannot be allowed, and it would not be included within the expression “awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto,” if mentioned in the plaint.

42. It is necessary at this stage to distinguish between three different types of cases in which the question of profits or mesne profits might arise: (1) Suits for ejectment, or recovery of possession of immoveable property from a person in possession without title, together with a claim for past, or past and future mesne profits; (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past, or past and future profits; (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager.

43. In the first case, the possession of the defendant not being lawful, the plaintiff is entitled to recover ‘mesne profits’ as defined in S. 2 cl. (12) of the CPC, such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant-in-common.

44. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profits, except where the manager has been guilty of fraudulent conduct, or misappropriation. The plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status, and his rights would have to be worked out on that basis.

45. Order 20, R. 12, Civil P.O deals with the first class of suit above referred to, while O. 20, R. 18, deals with the second and the third categories. (Vide Basavayya v. Guravayya, 1951 Mad 938 (AIR V 38) (FB) (F). A tenant-in-common, who files a suit for partition, seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from those properties during the pendency of the suit, or till he is put in possession of his share. He cannot anticipate how long the suit would be pending, or estimate even approximately what amount of profits would be realised during that period. He need not, therefore, specifically ask for any relief in respect of future profits, the prayer for general relief being sufficient to enable the Court to award him such profits.

46. If during the pendency of the suit one or some of the co-sharers receive or realise the entire profits, or more than their share of the profits of the common properties, they have to account to the other sharers for the excess. If the collecting co-sharer, or tenant-in-common is not in a position to bring in the hotchpot his realisations subject to all just allowances in his favour, the Court will, when passing a final decree, deprive him of a sufficient portion of the properties allottable to his share and allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of profits, or the Court may impose a charge on the share of the defaulting tenant-in-common for the amount, for which he is accountable, to that other-sharers, and thus equalise the shares.

47. The theoretical allotments and the general declaration of rights in the preliminary decree have to be worked out with due regard to the realisation of profits and drawings by the parties subsequent to the institution of the suit till the passing of the final decree.

48. The profit accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties, and both rights have to be worked out, and provided for in the final decree for partition.

49. A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. Such a claim of a member of a joint Hindu-family suing for partition, and for his share of the profits accruing from the lands pending the suit is not, properly speaking a claim for mesne profits, and O. 20, R. 12, as stated above, has no application to such a case (vide 1951 Mad 938 (AIR V 38) (FB) (F) above mentioned affirming the decision in 1923 Mad 147 (AIR V 10) (C) and 1947 Mad 106 (AIR V 34) (D), mentioned before).

50. This is the true nature of the proceedings in a suit for partition. Even if there is no agreement between the parties regarding the profits accruing during the pendency of the suit, a direction for an enquiry into the profits of the common properties received or realised by any of the parties during the pendency of the suit may be made even after the passing of the preliminary decree, and there is nothing in O. 20, R. 18 of the CPC. Interdicting such procedure.

51. The present case is a much stronger case in the sense that there was an agreement between the parties, and the plaintiff himself agreed to pay the manhunda rent of Rs. 23,837/- representing the defendant's half share, and as such it cannot be said that this was not a matter in controversy in the suit. The Court was, as such, justified in directing that

“if the plaintiff does not deposit the same in Court, the amounts as due till the final decree, shall be adjusted at the time of the final partition in the share of the parties”.

52. A partition suit in which a preliminary decree has been passed is still a pending suit, and the rights of the parties have to be adjusted as on the date of the final decree vide Jadunath Roy v. Parameswar Mullick, 1940 PC 11 (AIR V 27) (G). In such a suit the Court has not only to divide the common properties, but has also to adjust the equities arising between the parties out of their relation to the common property.

53. The preliminary decree determines the rights of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the shares of the parties that have to be considered and decided before an equitable final partition can be effected.

54. Among them, as I have stated before, are realisations of common outstanding, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of the property of the requisite value, and the like. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either ‘suo motu’ or on the application of the parties.

55. Order 20, R. 18, does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the members to direct an enquiry into the profits received, or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree.

56. This enquiry can be ordered either as part of the preliminary decree itself, or subsequently as a, step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree vide 1951 Mad 938 (AIR V 38) (FB) (F) referred to before. In such circumstances it cannot be said that the Court below was wrong in giving the direction which it did, or that this matter was not a matter in controversy in the suit between the parties.

57. It is well-established by the decision of the Privy Council in Muhammad Abdul Majid v. Md. Abdul Aziz, 24 Ind App 22 (PC) (H) that where a Court has before it a case consisting of two parts, a question of title and an incidental question of account depending on title, it does not require any provision of the Code of Civil Procedure to authorize it to decide the first question and reserve the second for further investigation.

58. To treat such a proceeding as beyond the power of the Court and as an error, which bars the proceedings reserved for further decision is a serious miscarriage of justice. In the present case the liability of the plaintiff to pay the amount has become final, and is a part of the preliminary decree. But only the adjustment of the amounts due to the respective parties has been left to be decided finally at the time of the final decree.

59. In the present case the impugned direction bears very much a close resemblance to the order passed in ‘Bhup Inder Singh v. Bijai Bahadur’, 27 Ind App 209 (PC) (I). In the words of their Lordships of the Judicial Committee in this case, the order of the learned Subordinate Judge regarding the liability of the plaintiff to pay (sic)

“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.”

60. In the present case there can be no doubt that the impugned direction is a part of the judgment of the Court delivered on 19-11-54. That was also the intention of the Court is clear from its order dated 22-11-54 passed on the petition of the plain tiff under Section 151 of the CPC praying that he we surrendering the lease of the hunda rent grant to him on the grounds set forth in his petition and the Court should accept the same, and a receiver be appointed for the management and cultivation of the suit lands. This prayer of the plaintiff was rejected by the Court on 22-11-54.

61. In rejecting this prayer the Court observe that this prayer was being rejected as this matte had already been dealt with in issue No. 19 of the judgment which was delivered on 19-11-54 After the above date and after the preliminary decree on 27-11-54 both parties filed a joint petition stating that they had settled the matter of hunda bandobasti from 1361 to 1362 Fs. between them selves and the plaintiff has not to deposit any thing as hunda from Baisakh 1361 Fs. and after wards, but there had been no settlement regarding Rs. 22,837, which the plaintiff had to deposit in Court, and, therefore, the parties may take any step which they liked.

62. The above orders are unmistakable manifestation of the intention of the Court that the direction which it gave simultaneously with and in the judgment itself on the petition of the defendants dated 26-8-54 was a part of the judgment, and therefore, a part of the preliminary decree, and the parties also treated that matter like that, as is clear from the order dated 27-11-54.

63. I may mention here that the plaintiff filed an application for review on 16-2-55, but it was dismissed for non-prosecution on 5-8-55 on plaintiff's petition to drop it without adjudication for the time being, as the records of the case had been called for by the High Court. I may also, mention that the plaintiff has also filed a title suit (No. 17 of 1954) in the Court of the Munsif at Bettiah for price of some crops forcibly removed during the pendency of the suit.

64. In the circumstances, I hold that no civil revision lies, because the remedy of the plaintiff is by an appeal against the preliminary decree, and therefore, as the plaintiff has another remedy, this civil revision on this ground also cannot be entertained.

65. I may notice here another argument of) Mr. Mahabir Prasad on Section 105 of the CPC. Section 105(1) runs thus:

“Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”

66. It provides that where a decree is appealed from, any error defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. In an appeal against the preliminary decree it would be open to the plaintiff to challenge the orders passed by the learned Subordinate Judge regarding his liability to pay Rs. 22,837/- after 15-9-52 upto 19-11-54, and this matter can be agitated, because it surely affects the decision of the case regarding the liability of the plaintiff to pay the aforesaid amount representing the moiety share of the defendant in the usufruct of the lands under partition.

67. Cases, such as, Sayama Bibi v. Madhusudan Mohanta, 1925 Cal 766 (AIR V 12) (J), Mahomed Nuru v. Monohar Saran, 1925 Cal 473 (AIR V 12) (K) and Bhola Ram v. Arjan Das. 1933 Lah 152 (AIR V 20) (L), in which it has been held that an order setting aside an abatement, and allowing substitution of the heirs of the deceased party cannot be questioned in appeal from the decree in the suit, whether such an order is passed before, simultaneously with the decree, such an order not being one which affects the decision of the case with regard to its merits within the meaning of S. 105, have no application to the present case, because the matter in controversy between the parties is a matter in controversy in the suit, and lit directly affects the merit of the appeal as far as the decree has determined the liability of the plaintiff to pay the amount, which would become final, if no appeal is preferred against the preliminary decree.

68. The order dated 30-4-54 and all other interlocutory orders passed between 15-9-52 and 19-11-54 regarding the liability of the plaintiff to pay the aforesaid amount in whole or in part, being in the nature of interlocutory orders, could not be the subject of an appeal, but under Section 96 of the CPC a party has a right to appeal from a decree and under S. 105(1) of the Code when a decree is appealed from, any error, defect or irregularity, in any order, affecting the decision of the case, may he set forth as a ground of objection in the memorandum of appeal. This of course means that ground is open to him when appealing from the decree, and should be considered and disposed of in deciding the appeal, if and when taken (see, 1923 Mad 147 (AIR V 10) (C), referred to before).

69. The contention of Mr. Roy that this order may be treated as another preliminary decree has no substance, because the impugned direction, as I have already held, is a part of the preliminary decree itself, and, therefore, it is not necessary to treat this order as a separate preliminary decree. A Court has ample authority to direct successive trials of different issues, and even to record interlocutory judgments thereon, to be made the basis of the final judgment at the conclusion of the trial of the whole case (see Bhuban Mohini Dasi v. Kumud Bala Dasi, 1924 Cal 467 (473) (AIR V 11) (M).

70. But in the present case I am not surprised if the plaintiff has not preferred an appeal against the preliminary decree, because the decree as prepared is entirely misleading, and it does not conform to the provisions of the Code of Civil Procedure (see O. 20, Rr. 6, 9, 11 and 12). Order 20, R. 6(1) specifically provides that the decree shall agree with the judgment, and it shall inter alia specify clearly the relief granted, or other determination of the suit.

71. In the present case the decree only mentions that the suit has been decreed in part. This, in my opinion, is not a sufficient compliance with the mandatory provisions of sub-cl. (1) of cl. (6) of O. 20 of the CPC. This has misled the plaintiff in thinking that no appeal was permissible against the decree as far as the present matter was concerned.

72. It is true that in order to construe a decree a Court has to look into the judgment also to find out what the Court has decided. But in the present case the order portion of the judgment is itself very vague, inasmuch as it only says “the suit be decreed in part as observed above”. This matter in controversy was not made the subject-matter of a separate issue, and the Court considered it under issue No. 19.

73. Therefore, in my opinion, it would have been proper for the Court below to mention this specific direction regarding the liability of the plaintiff to pay the amount in the order portion of the judgment so that it could be incorporated in the decree, which was subsequently prepared by it. This not having been done, the plaintiff was left speculating as to whether an appeal should lie, or a civil revision, against the impugned direction.

74. The plaintiff was justified in being misled that as the impugned direction had been given on the petition of the defendant, therefore, it should be treated as an order passed on a petition and not on a specific issue, and, therefore, an appeal could not lie. In the result, subject to the observations made above, the rule is discharged, and the application is dismissed; but, in the circumstances of the case each party will bear its own cost.

Rai, J.:— I agree.

V.B.B

75. Application dismissed.