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.