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Smart Summary

Factual and Procedural Background

The plaintiffs sued under the Dekkhan Agriculturists' Relief Act for an account of all transactions connected with two mortgages dated 20 December 1865 and 21 December 1865, to have the amount due determined, and to obtain a decree for redemption. The learned Subordinate Judge, after investigating certain factual questions relating to amounts due on different mortgages and plots, referred the taking of the account to a Commissioner under Order 26, Rule 11 of the Code of Civil Procedure. The Commissioner appears to have been directed to ascertain numerical calculations based on facts found by the Subordinate Judge; the Commissioner's figures were furnished and, with no objection from either party, the Court found that the whole debt had been paid out of the profits of the mortgaged property and passed a decree (dated 30 August 1910) for the plaintiffs for possession of the property except one survey number.

An appeal to the First Class Subordinate Judge (with appellate powers) followed. A preliminary objection was taken that the appeal was time-barred because time for appeal, it was argued, began to run from the date when the Subordinate Judge issued the Commission (15 August), the contention being that the issue of the Commission or the recorded instructions constituted a preliminary decree within the meaning of section 2 of the Code of Civil Procedure. The appellate court accepted that preliminary point, held that the decision of 15 August constituted a formal adjudication (a preliminary decree) and dismissed the appeal. The present opinion sets aside that dismissal, holding that the 15 August act was not a preliminary decree and remanding the case to the lower appellate court for disposal on the merits. Costs in the appeal were awarded.

Legal Issues Presented

  1. Whether the issuance of a Commission (and the recorded directions given at the time of issuing it) by the Subordinate Judge amounted to a "preliminary decree" within the meaning of section 2 of the Code of Civil Procedure, thereby starting the period for appeal and rendering the subsequent appeal time-barred.
  2. Whether the appellate court was correct to dismiss the appeal on the ground that matters decided by the Subordinate Judge when issuing the Commission had, in fact, conclusively determined rights of the parties and were therefore appealable.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishnaji Sakharam Kulkarni v. Maruti Appa The phrase "with regard to the manner in which accounts should be taken" was taken from this judgment; that case dealt with the status of the plaintiff and the general right to demand accounts under the Dekkan Agriculturists' Relief Act. The Court explained that the phrase was cited without due regard to the actual question in that case: Krishnaji concerned a general question of right (status and entitlement to special rights under the Act), whereas the present matter concerned particular factual points on the merits. The Court therefore distinguished the precedent and rejected treating the Subordinate Judge's directions as a preliminary decree on that basis.

Court's Reasoning and Analysis

The Court's analysis proceeded in these steps:

  1. Statutory framework and procedure: The Subordinate Judge investigated factual disputes as to amounts due and then issued a Commission to a Commissioner under Order 26, Rule 11 of the Code of Civil Procedure to make the necessary adjustment/examination of accounts; Rule 12(2) treats the Commissioner's proceedings and report as evidence, subject to further inquiry if the Court is dissatisfied.
  2. Nature of the Commissioner's role: In this case the Commissioner merely ascertained figures based on the facts already found by the Subordinate Judge; the Commissioner supplied calculations which the Court accepted without objection and then drew the conclusion that the debt had been paid out of profits, leading to the decree for possession.
  3. Appellate court's view and reliance on precedent: The appellate court treated the Subordinate Judge's decision of 15 August (when directions were given to the Commissioner) as a formal adjudication that conclusively determined the parties' rights "with regard to the manner in which accounts should be taken," and classified it as a preliminary decree under section 2 of the Code; it relied on wording drawn from Krishnaji Sakharam Kulkarni v. Maruti Appa.
  4. Distinguishing the precedent and defining "preliminary decree": The Court explained that the cited case concerned a general question of right (status and entitlement under the Dekkan Agriculturists' Relief Act) and not the resolution of particular factual disputes. Reported cases interpret "rights of the parties in regard to matters in controversy" to mean general rights (status, jurisdiction, limitation, frame of the suit, liability to account) which have a general effect on the proceedings and can be decided preliminarily.
  5. Application to the present facts: The Court held that the 15 August act did not decide any general question of right but only a number of points in dispute upon the merits between the parties. The Subordinate Judge had not passed a decree on the merits and was awaiting the Commissioner's calculations as evidence before framing a final decree.
  6. Conclusion as to appellate jurisdiction: Because the 15 August directions did not constitute a preliminary decree within the meaning of the relevant provisions, nothing in the Code prevented the appellate court from entertaining the appeal. The appellate court was therefore in error in dismissing the appeal as time-barred.

Holding and Implications

Holding: The decree of the appellate court dismissing the appeal was set aside and the case was remanded to the lower appellate court for disposal on the merits.

Implications: The direct effect is that the earlier dismissal of the appeal is quashed, the matter returns to the lower appellate court for determination on the substantive merits (including consideration of the Commissioner's calculations as evidence), and costs of the appeal were awarded. The opinion distinguishes between preliminary determinations of general rights (which may constitute preliminary decrees) and orders resolving factual points on the merits (which do not), and applies that distinction to deny that the issuance of the Commission in this case was a preliminary decree. The opinion does not purport to lay down a broader new precedent beyond the application of that established distinction to the facts of this case.

    Narayan Balkrishna v. Gopal Jiv Ghadi

    1. The plaintiffs sued to have an account taken under the provisions of the Dekkhan Agriculturists' Relief Act of all transactions from the commencement in connexion with two mortgages of 20th December 1865 and 21st December 1865, and to have the amount due determined, and to obtain a decree for redemption.

    2. The learned Subordinate Judge, on 30th August 1910, passed a decree for the plaintiff for possession of the property, except one survey number, ??? from incumbrances, the defendants having received profits for 25 years after the debt had been paid off. Before passing that decree the learned Judge had investigated certain questions of fact in issue between the parties with reference to the amounts due in respect of different mortgages and different plots of land. Then, instead of making up the final mortgige account himself, he, as is permissible under the Code of Civil Procedure, referred the taking of the account to a Commissioner. The Code provides, O. 26, R. 11, that:

    “in any suit in which an examination or adjustment of accounts is necessary the Court may issue a Commission to such person as it thinks fit directing him to make such examination or adjustment;”

    3. And R. 12(2) provides that:

    “the proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them it may direct such farther inquiry as it shall think fit.”

    4. In the present case the work of the Commissioner appears merely to have been the ascertainment of the figures based upon the facts found by the Subordinate Judge, and the figures having been furnished by the Commissioner, and neither party objecting, the Court found the fact to be that the whole debt had been paid out of the profits of the mortgage property, and passed the decree already inferred to.

    5. From that decree an appeal was preferred to the First Class Subordinate Judge, with appellate powers, and a preliminary objection was taken that the appeal was time barred, inasmuch as time ran from the date when the Court issued the Commission to the Commissioner to the account on the ground that the issue of a Commission or the instructions which were recorded for the benefit of the Commissioner at the time of the issue of the Commission constituted a preliminary decree within the definition of section 2 of the cpc. This preliminary point found favour with the appellate Court and the appeal was accordingly dismissed, because the matters decided by the Subordinate Judge on the question in issue between the parties were decided in fact by 15th August when he issued his directions to the Commissioner.

    6. The learned Judge of the appellate Court held the decision of 15th August to be the formal expression of an adjudication which, so far as regarded the Court of the Subordinate Judge, conclusively determined the rights of the parties with regard to the mannar in which accounts should be taken, and was therefore a preliminary decree within the meaning of S. 2 of the Code, and as such was appealable. The words:

    “with regard to the manner in which accounts should be taken” appear to have been selected from a judgment of this Court in Krishnaji Sakharam Kulkarni v. Maruti Appa (1), but they were selected without due regard to the question which was before the Court in that case. The question was as to the status of the plaintiff, whether he was entitled to the special rights of the favoured class under the Dekkan Agriculturists' Relief Act in the matter of demanding accounts from the mortgagee. It was a decision with regard to the general right of the plaintiff and the general liability of the defendant, without reference to particular questions of fact which might be in issue between the parties in an investigation of the merits of their particular cases after it had been decided what law was applicable to them. In applying the definition of the section 2 of the cpc of 1908, it will be found that in the reported cases in this Court the rights of the parties in regard to matters in controversy are taken to mean general rights such as rights in relation to status, in relation to jurisdiction, in relation to limitation, in relation to frame of the suit and in relation to liability to account, which if decided, must have a general effect upon the proceedings in the suit and can be decided preliminary to the investigation of the matters in dispute between the parties upon the merits.

    7. In the present case what was decided on 15th August at the time of the issue of the Commission was not any general question of right, such as had been referred to, but merely a number of different points in dispute upon the merits of the case between the parties.

    8. The learned Judge passed no decree upon the merits. He was waiting for the Commissioner to send in his calculation which would form an item in the evidence to be taken into consideration before framing the decree.

    9. We therefore think that the learned Judge of the appellate Court was in error in dismissing this appeal, for there was nothing in the Code which prevented him from entertaining it inasmuch as there was not a preliminary decree within the meaning of S. 97. We therefore set aside the decree and remand the case to the lower appellate Court for disposal on the merits.

    10. Costs, costs in the appeal.

    G.P/R.K

    11. Decree set aside.

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    Comments

    Narayan Balkrishna v. Gopal Jiv Ghadi
    (Jan 22, 1914)