KHADEM HOSSEIN Vs. EMDAD HOSSEIN
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Maclean, C J -
(1.) The question submitted for our decision is "whether in an appeal against the final decree in a partition suit it is open to the appellant to question the correctness of the preliminary order or decree for partition when no appeal was preferred against such order within the time allowed by law."
(2.) The first point to consider is whether the preliminary order or decree is a decree within the meaning of Section 2 of the Civil P. C.. The Full Bench case of Dulhin Golab Koer V/s. Radha Dulari Koer (1892) I. L. R. 19 Cale. 463 is a distinct authority to the effect that such an order is a decree within Section 2, and this view is clearly supported by the recent case of Bhup Indar Bahadur Singh V/s. Bijai Bahadur Singh (19O0) I. L. R. 43 All. 152 before the Judicial Committee of the Privy Council, in which judgment was given on the 21 July 1900. There it was held that an order upon an issue, "For what period are mesne profits recoverable" was final and not interlocutory; that it was a decree within the definition of Section 2 of the Code, and consequently appealable under Section 540. Their Lordships then say: "Treating the question as if it were whether the order under consideration is final or interlocutory in its nature, and testing it by the ordinary principles applicable to such questions, their Lordships think not only that the High Court are right in the particular circumstances of the case, but that there is not any need to rely upon the accident that the District Judge took the convenient course of trying the liability to account in a separate issue and deciding it in a separate judgment. His decision is a final one in its essence, and would be so equally whether it stood alone or was combined with decisions on other points. It resembles in principle a decree for account made at the hearing of a cause, which is final, against the party denying liability to account and is appealable, though it is also in another way interlocutory, and may result in the exoneration of the accounting party or even in the award of a balance in his favour. And it can make no difference in point of principle whether the decision be in favour of or against the liability to account. It is equally final in its effect, and as such equally open to appeal." If a decree adjudicating upon the question of liability to account be final, a decree in a partition suit, which completely determines the shares of the parties, must equally be so. It is clear, then, that the preliminary order here was a decree appealable and final as opposed to being interlocutory in its nature. I am not dealing with the question whether a statement in a judgment as to rights of the parties where no formal decree has been drawn up and where the declaration of such rights has not been embodied in a formal decree is a decree within the meaning of the Code. That point is not now before us. I would only add for the guidance of Judges in the mofussil that, in my opinion, preliminary orders in partition suits and in suits for account, if they declare the rights of the parties either as to their shares of the property to be partitioned or as to liability to account, ought to do drawn up formally as decrees in compliance with Section 206.
(3.) But now arises the question submitted to us, and upon this there are two conflicting decisions mentioned in the reference.;
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