1. The Subordinate Judge after recording certain findings on preliminary points, passed what he calls a preliminary decree on the usual printed form for decrees, with certain alterations made therein. The so-called decree runs as follows:—
“This suit coming on this day, the 5th day of April, 1916, in the presence of F.E Sanjana, Pleader, for the plaintiffs, and R.M Khare, Pleader, for the defendants, it is held that the lease being unregistered cannot be admitted into evidence to show that by executing the lease the plaintiff admitted the partition and that the receipts of delivery of possession of the partitioned property will not exclude oral evidence of the partition if the defendant can show that the partition had already taken place three months before the date appearing on the receipts.
Given under my hand and the seal of the Court, this 5th day of April, 1916.”
2. In the printed form, the words “for final disposal” have been struck out as well as the words “ordered and decreed” and the word “held” substituted in the place of the latter expression.
3. Against this extraordinary decree, there was an appeal to the District Judge, East Berar. There was also a cross-objection filed. The appeal of plaintiffs was dismissed and the cross-objection of the defendants allowed. The plaintiffs now file this appeal, and it is correctly urged on their behalf that no appeal lay to the lower Appellate Court and that the so-called decree was not a decree in the eye of the law.
4. Although the definition of the term “decree” in the new Procedure Code has given rise to certain amount of controversy, yet this is the first time in which a ruling on a point of evidence has been put in the printed form of a decree, and an appeal seriously entertained from it. In my opinion, a rinding, unless it operates in the eye of the law as a decree, will not be a decree merely because the Judge chooses to make use of a printed form entirely inapplicable to that finding. Conversely, the absence of a formal decree will not make an adjudication any the less a decree, if in point of law the adjudication operates as a decree.
5. Now the law does not contemplate each adjudication to be a decree and subject to the provisions of Section 97 of the Code. If the view taken by the Courts below were sound, there will be innumerable preliminary decrees in the trial of a suit, each subject to an appeal and second appeal. Such could not possibly have been the intention of the legislature. The law contemplates one preliminary decree followed by a final decree. The Code itself gives instances where a preliminary decree can be drawn up, such as cases of partition, accounts, mortgages, and so forth.
6. A decree as defined in the Code is a conclusive determination of the rights of the parties in controversy in the litigation and capable of being embodied in a preliminary or a final decree. In other words, there must be an adjudication as to the substantive rights of the parties which form the subject-matter of the suit. No doubt, in many instances, a suit is finally disposed of where a preliminary objection to the trial of the suit prevails. If a point of limitation or res judicata is decided against the plaintiff, that decision terminates the suit; but if the decision is in favour of the plaintiff, it only leads to the trial of the rights of the parties, and therefore, a preliminary finding on such a point in favour of a plaintiff cannot operate as a decree. A preliminary decree must define the rights of the parties, though it does not necessarily lead to a final and complete disposal of the case. In a suit for accounts, the liability of the defendant to render accounts, must be adjudged before such a decree is passed. Similarly, in a suit for partition, the rights of the parties must be defined before a preliminary decree can be passed.
7. The view which I take is supported by the judgment of Mookerjee and Beachcroft, JJ., in Kamini Debi v. Promotha Nath Mukerjee (1914) 19 C.W.N 755 , 27 I.C 317 , 20 C.L.J 476. At page 757 the learned Judges say:—
“If the expression ‘matter in controversy’ is understood in its widest possible sense, the argument advanced on behalf of the appellant may be supported. But the question remains whether the expression ‘matter in controversy in the suit’ should be understood in this comprehensive sense. On behalf of the respondent it has been argued that the expression ‘matter in controversy’ refers to the subject-matter of the litigation, and that if this view were not adopted, every question in dispute between the parties in the course of litigation may be deemed to fall within the expression ‘matter in controversy in the suit.’ In our opinion, the view put forward on behalf of the appellant is unsound and should not be accepted though it is supported by the decision in Sidhanath Dhonddev v. Ganesh Govind (1913) 37 Bom. 60 , 17 I.C 637 , 14 Bom. L.R 916.”
8. I hold that there was no decree passed by the Subordinate Judge and no appeal lay to the District Judge. The so-called decrees of the Courts below are set aside, and the Court of first instance is directed to proceed according to law. Each party will bear his own costs of the two Appellate Courts. There will be no order for refund of Court-fees.
9. Decrees set aside.