Satish Chandra, J. - (1.) THESE are two applications made on behalf of the defendants-appellants for permission to ad duce additional evidence. Civil Misc. Ap plication No. 4805 of 1962 was filed on 16th October, 1962. Civil Misc. Applica tion No. 5358 of 1968 was filed on 4th September, 1968. These applications were filed during the pendency of a First Ap peal in this Court, which is directed against a preliminary decree for accounts in a suit for partition and accounting. By an order dated 8th September, 1971, we rejected the prayer for permission to ad duce two sale-deeds and a plaint as addi tional evidence in this Court. The defen dants-appellants wished to produce two applications dated 29th November, 1954, and 17th July, 1956, as additional evi dence. They have stated that these appli cations were not within their knowledge, and so they could not be filed in the trial Court. The appellants came to know of these applications after the institution of another suit for accounts (No. 177 of 1962) pending between the parties. The averment as to the acquisition of know ledge about these applications after the institution of suit No. 177 of 1962, has not been controverted in the counter-affi davit. There is no reason to disbelieve it. The suit out of which the present appeal arises, was decided on 25th October, 1961. It is thus clear that the appellants did not, in spite of due diligence, have knowledge of these applications at the time of the passing of the decree in this suit. The appellants are entitled to produce these documents as additional evidence.
(2.) THE plaintiffs-respondents have in their counter-affidavits sought to adduce several documents by way of rebuttal. They are entitled to lead evidence in re buttal. The documents annexed to the counter- affidavits will also be taken on re cord as evidence. The other application filed on 4th September, 1968 prays that the defendants-appellants be permitted to read in evidence the documents mentioned in it, because they are already part of the record of the suit. It appears that after the passing of the preliminary decree for accounts, the trial Court appointed a Commissioner to go into the accounts. A large volume of evidence was led before the Commissioner. The Commissioner filed those documents on the record of the case along with his report. It is alleged that the trial Court has also referred to these documents in its judgment pronouncing the final decree. Learned counsel for the appellants relied upon Order 41, Rule 30, C. P. C., which provides:- "The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose de cree the appeal is preferred, to which re ference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders." Under this provision, the parties to an ap peal can in their arguments refer to any part of the proceedings whether on appeal or in the trial Court, to which reference may be considered necessary. On behalf of the appellants, it was urged that it is well-settled that appeal is a continuation, of the suit. It was also urged that the suit does not terminate by the passing of the preliminary decree for accounts. The proceedings for the preparation of final de cree are proceedings in the same suit. The proceedings undertaken in the trial court for the preparation of the final de cree will be ' proceedings...... in the Court from whose decree the appeal is preferred" within the meaning of Rule 30 quoted above. The parties are, therefore, entitled to refer to them at the hearing of the appeal. In our opinion, there is merit in this submission.
(3.) IN Anmol Singh v. Hari Shan-kar .Lai, AIR 1930 All 779, a Division Bench held that under the Civil Procedure Code now in force, a suit does not termi nate by the passing of the preliminary de cree, but continues till it is finally and completely disposed' of by the passing of the final decree. Another Division Bench in Ramesh Chandra v. Ghanshiam Das, AIR 1955 All 552 observed that a decree jand defined in Section 2 (2), Civil Procedure /Code, as "the formal expression of an ad judication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit". This may be either preliminary or final. The Bench then held:- "A decree is preliminary when further proceedings have to be taken when the suit can completely be disposed of. It is final when such adjudication completely disposes of the suit. The final decree, therefore, merely carries into fulfilment the preliminary decree passed in the suit." This decision establishes that the proceed ings for the preparation of the final de cree are proceedings in the same suit; be cause, the suit is not completely disposed of by the passing of the preliminary de cree but it continues and is disposed of finally with the making of the final decree. The Privy 'Council in Ja.dunath Roy v. Parmeshwar Mullick, AIR 1940 PC 11 at p. 16 held that a partition suit in which a preliminary decree has been passed, is still a pending suit. Similar view has been taken by the Sind Judicial Commis sioner's Court, Ghulam Fatima v. Abdul Aziz, AIR 1933 Sind 371 and the Madras High Court, B. Basavayya v. B. Guravayya, AIR 1951 Mad 938 (FB). ;