It is not disputed that the provision in Sect. 110, Civil Procedure Code as to value of subject matter is complied with in this case. The objection we have to deal with is only that our decision, in respect of which leave is asked for, is not a decree or final order, within the meaning of Sect. 109. Petitioners contend that it is the latter.
In the definition of decree in Sect. 2 (2), Civil Procedure Code the antithesis is between “final” and “preliminary,” decrees of the lattter description being defined as those, after which further proceedings have to be taken before the suit can be completely disposed of. But in all the authorities at present relevant the opposition is for our present purpose, regarded as being between “final’ and “interlocutory,” and “interlocutory” is defined in Wharton's Law Lexicon as
“That which is decided during the course of an action and does not determine it.”
This definition at first sight differs little from the definition of “preliminary” in the Code above referred to. But when it was relied on in Standard Discount Co. v. La-Grange, it was, as the judgments show, accepted only subject to the modification that the matter decided did not determine any substantive right of a party, Cotton, L.J, observing that:
“Without using an exhaustive definition, it may be laid down that an order is interlocutory, which directs how an action is to proceed.”
That authority is important, because it with others in the same sense Salaman v. Warner and Bozon v. Altricham Urban Council, was adopted by the Privy Council in Ramchand Manjimal v. Goverdhandas Vishandas Rattanchand(3), as the basis for its conclusion that:
“An order is final, if it finally disposes of the rights of the parties.”
And this, it may respectfully be observed, is merely a general statement of what underlies the decisions in Rahimbhoy Habibbhoy v. C. A. Turner(4) and Bhup Indar Bahadur Singh v. Bijai Bahadur Singh(5), where accounts were ordered to be taken on findings, in favour of the liability to account of a party, and in the former it was said:
“Now that question was the sole question in dispute at the hearing of the cause and it is the cardinal point of the suit The arithmetical result is only a consequence of the liability. The real question in issue was the liability and that has been determined by this decree against the defendant, in such a way that in this suit it is final. The Court can never go back again on this decree, so as to say that, though the result of the account may be against the defendant, still he is not liable to pay anything.”
Shortly, it is the effect of the order as determining the disputed right of a party not as formally concluding the proceedings, which must be regarded as decisive and that distinction is observed with almost absolute consistency throughout the cases above referred to. For, although Fry, L.J in Salaman v. Warner referred to “the determination of the action” the references in the other judgments therein and in the other two cases are to “the matter in dispute” and “the rights of the parties.”
Ramchand Manjimal v. Govardhandas Vishandas Ratanchand was decided under the present Code and, as the law is stated clearly there and in the other decisions of the Privy Council above referred to, it is unnecessary to deal at length with other cases decided in the Indian High Courts, on which respondent relies. It may however be observed that Tirunarayana v. Gopalasami(6) followed in Mangayya v. Venkataramanamurthy(7) was based on Mahant Ishvaragar Budhgar v. Caudasama Amarasang(8) and that the last mentioned decision was referred to in argument in Rahimbhoy Habibbhoy v. C. A. Turner, but apparently was not accepted as good law. The test of the finality of an order being as stated above, we apply it to the proceedings before us.
The nature of those proceedings can be explained shortly. Plaintiff, now the respondent, sued for dissolution of partnership and connected reliefs, including the taking of an account, and failed in the Court of First Instance on two grounds, of which only the second, that his suit was barred by limitation, is at present material. The finding on that point, and our reversal of it respectively negatived and declared his right to relief; and the result as regards the right to an account between the parties, the taking of which plaintiff's claim involves, is the same as that indicated in Rahimbhoy Habibbhoy v. C. A. Turner. Our direction to the lower Court to frame a preliminary decree and take further proceedings according to law was merely consequential on our decision and did not, we must hold, affect its character as a final order.
In these circumstances we allowed the petition with costs and certify that as regards value and nature of the case fulfils the requirements of Sect. 110, Civil Procedure Code.
C. K.Petition allowed.