FIRM GANESHDAS KISHNAJI Vs. MURLIDHAR
LAWS(MPH)-1955-9-15
HIGH COURT OF MADHYA PRADESH
Decided on September 22,1955

Firm Ganeshdas Kishnaji Appellant
VERSUS
MURLIDHAR Respondents

JUDGEMENT

Dixit, J. - (1.) THIS is an application under Article 133 of the Constitution of India for leave to appeal to the Supreme Court from our decision in 'Murlidhac v. Firm Ganeshdas Kishnaji'. The appeal arose out of a suit in which the Plaintilf Murlidhar alleged that the Defendant firm was accountable to him upon several forward transactions' in gold and silver and prayed for a, decree for the rendition of accounts and for payment of such sum as may be found due to him, and in the alternative if the account had been rendered to him, fur the reopening of the account. The trial Judge gave to the Plaintiff a preliminary decree permitting him to surcharge and falsify the accounts kept by the Defendant. The Plaintiff then appealed to this Court. We allowed the appeal and substituted the decree of the trial Court by a preliminary decree directing the Defendant to render accounts to the Plaintilf. The Defendant -firm' now seeks leave to appeal to the Supreme Court.
(2.) THE valuation of the subject -matter1 of the dispute in the original Court, as well as in the appeal before us was Rs. 21,000/ -; the decree sought to be appealed from is not one of affirmance of the decree passed by the trial Court. The Petitioner is, therefore clearly entitled, as of right, to a certificate or leave to appeal. Mr. Sanghi learned Counsel for the non -applicant, however, on the autherity of - 'Kuppuswami Rao v. The King' : AIR 1949 FC 1 (A) and 'Mohammad Amin BrOrs. Ltd. v. Dominion of India', AIR 1950 FC 77 (B), contends that under Article 133 no appeal is Provided for against a preliminary decree. I am unable to accede to the contention. The word 'decree' which occurs in Article 133 of the Constitution and in Section 109 Code of Civil Procedure is not qualified by the words "preliminary" or "final". Under Clauses (a) and (b) of Section 595, Code of Civil Procedure 1882, an appeal lay to the Privy Council from "any final decree" and under Clause (c) of that section an appeal have from "any decree when the case is certified to be a fit one for appeal". The Code of Civil Procedure, 1908, removed the distinction between a final decree and a preliminary decree observed by the Code of 1882 with regard to appeals to the Privy Council and made any decree which satisfied the conditions laid clown in Section 109, Code of Civil Procedure 1908, appealable to the Privy Council. Article 133 of the Constitution does not in any way change the position so far as the appealability of a decree is concerned. It makes no distinction between a preliminary decree and a final decree. Under that article a preliminary decree as well as a final decree is appealable. The argument of Mr. Sanghi learned Counsel appearing on behalf of the non -applicant that as no appeal lies against am interlocutory judgment or order, therefore, a preliminary decree is not open to appeal to the Supreme Court is fallacious. The fallacy lies in assuming that a preliminary decree docs not partake of the nature of finality attributed to a final decree or a final order or a final judgment. The term 'decree' has been defined in Section 2(2) of the Code. It means "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines die 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. The explanation to this Sub -section says that a decree is preliminary when further proceedings have to be taken before the suit can be completely t disposed of. It is final when such adjudication completely: disposes of the suit. This definition of preliminary decree clearly satisfies the test of finality laid down by the Privy Council in 'Abdul'Rahman v. D.K. Cassim and Sons' : AIR 1933 P.C. 58 (C), add applied by the Federal Court in 'AIR 1949 F.C.I. (A)', and, 'AIR 1950 F.C. 77 (B). The 'test laid down in the above cases for determining the finality of an order is whether the judgment or order finality disposed of the' rights of the parties and that "the finality must be a finality in relation to the suit. If after the 'Order the suit is still alive in which the rights of i. the parties have still to be determined, no appeal lies against it: It must be noted drat die test is not whether further proceedings have to be taken before the suit, can be completely disposed of; it is whether he rights of the parties have been finally determined by the judgment or order and whether the suit is a live suit not for the purpose of working out the details in accordance with the judgment or order, but for die purpose of determining die rights of the parties. Now in a suit for rendition of accounts and foil payment of such money as may be found due after the taking of accounts, the real question for determination is die liability to account and when that has been determined by a preliminary decree against the Defendant, the determination of the amount due to a party after the taking of accounts iS; merely a matter of working out die details in accordance with the preliminary decree. In such a case after the passing of the preliminary decree further proceedings in suit are not proceedings in which the rights of die parties have to be determined. A Preliminary decree is, therefore, even on applying the test laid down in the cases cited by the, learned Counsel ion the non -applicant, appeal able under Article 133. This conclusion is reinforced by die provisions of Section 97, Code of Civil Procedure which prescribes that where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness any appeal which may be preferred from die final decree. The anomaly and absurdity that would result if a preliminary decree is not appealable to the Supremo; Court is thus 100 obvious. No doubt if Article 133 had expressly made only final decrees to the exclusion of preliminary decrees, appeal able to the Supreme Court, then a party could not have by merely relying on Section 97, Code of Civil Procedure claimed a right to the Supreme Court from a preliminary decree. But the anomaly and absurdity resulting from Section 97 would still remain. It cannot be ignored in construing the meaning of tile word 'decree' in Article 133. I must refer to two decisions of the Privy Council where it lias been held diat under Section 109 Code of Civil Procedure 1908'an appeal lies from a preliminary decree. In 'Sanyasi Charan Mandal v. Krishnadhan Banerji', AIR 1922 P.C. 237 (D), an appeal was filed before the Privy Council against a decree passed by die Calcutta High Court against the Defendant directing him to render accounts to the Plaintiff. A preliminary objection was taken before the Privy Council that the appeal did not lie as the order was not final. The Privy Council overruled the objection and made die observation tiiat a preliminary objection was taken that the appeals did not lie because the order was not final. But their Lordship!! did not give effect to it and die appeals have been heard". In 'Rahimbhoy Haribhoy v. C.A. Turner' 18 Ind App. 6 (PC) (E), an appeal was preferred to the Privy Council from a decree of tire Bombay High Court directing the Defendant to account to the Plaintiff. The question a.rose whether the decree was a final one within the meaning of Section 595 of the Code of Civil Procedure 1882. Their Lordships of die Privy Council held that the decree was a final one. They said: It is true that the decree that was made does not declare in terms the liability of the Defendant,, but it directs accounts to be taken which he was contending ought not to be taken at all; and it must be held that the decree contains within it self an assertion that, if a balance is found against the Defendant on these accounts, the Defendant is bound to pay it. Therefore, the form of the decree is exactly as if it affirmed the liability of die Defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of die cause, and it is the cardinal point of suit. The arithmetical result is only a consequence pf 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 upon this decree so as to say that, though the result of the account may be against the Defendant, still Defendant is not liable to pay anything. That is finally determined against him, and therefore, in their Lordships view the decree is a final one within the meaning of Section 595 of the Code.
(3.) IT will be noted that an order in Rahlmbhoy's case was one which under the present Code, would be a preliminary decree. This case was referred to in ' : AIR 1933 P.C. 58 (C) where the test for die determination of the finality of an order was laid down. The Privy Council distinguished it by saying that the order tiieiein decided the cardinal point and said that in that case, i.e. in Rahim -bhoy's caso un appeal to His Majesty in Council would have lain as of right under 'the provisions -of the present Code, i.e. die Code of Civil Procedure of 1908. In my view on the principles laid down in the above two cases, an appeal would lie to the Supreme Court from a preliminary decree, e.g., and decree declaring the liability of a party and directing accounts to be taken.;


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