Mockett, J.

The 2nd defendant is the appellant. He is the son of Parasuraman who is the brother of one Balakrishnan. Balakrishnan is the father of the 1st defendant Harikrishnan and the 1st defendant has three sons who are the plaintiffthe 1st respondent in this appealand the 14th and 15th defendants who were born during the pendency of the suit. That was a partition suit, O.S. No. 47 of 1915, between the 1st respondent and the 1st and 2nd defendants. In that suit, Ex. IV, a partition deed dated the 28th April 1915, was ultimately found to be good and binding on the plaintiff. Two further dates are material. On the 10th February 1922 there was a sale deed Ex. F by which the 1st defendant as guardian of the plaintiff and for himself transferred certain properties to the 2nd defendant for Rs. 38,000 and Ex. S-1 dated 21st April 1925 by which the 1st defendant this time for himself and as guardian for the plaintiff and the 14th defendant conveyed to the 2nd defendant certain other properties for Rs. 12,000. There was a preliminary decree in that suit dated 29th March 1928. It has not been explained to us, nor is it material for us to investigate, why it was that a suit of 1915 reached the stage of preliminary decree in December 1928. But that is what happened. That preliminary decree was as follows:

This Court both order and decree that the plaintiff do recover from the defendants half of the properties allotted to the 1st defendant under Ex. IV hereto attached, that plaintiff do recover from the 2nd defendant Rs. 10,536-15-2 together with interest thereon at 6 per cent per annum from date of suit (28th April 1915) till date of payment.

There was an appeal against that decree and it was upheld by the High Court on the 7th November 1934 and with a compromise attached. In the ordinary course this matter went before a Commissioner for the ascertainment of the half share mentioned in the preliminary decree. On the date that the Commissioner was making his return to the Court, an application was filed to the learned Subordinate Judge of Berhampore by the 2nd defendant, the present appellant. His petition is for two reliefs, first to direct that items 1 to 17 in the Schedule may be excluded from the family property of the plaintiff and defendants 1, 14 and 15, and secondly, to direct the allotment of the said lands to the share of defendants 1, 14 and

15. It may be observed that petition is based on S. 151 of the Civil Procedure Code and O. 20, R. 18 and O. 26, Rr. 13 and 14 of the Civil Procedure Code. The first relief was abandoned. We are told it has been abandoned in this Court. The second relief was pressed. It was supported by an affidavit of the petitioners clerk who, curiously enough, only asks that the lands referred to in prayer one should be excluded and makes no reference to the second prayer. However, that prayer was undoubtedly before the lower Court. A counter-affidavit was put in by the first respondent, the plaintiff, in which he strongly opposed the application, he attacked the alienations mentioned as fraudulent and collusive and alleged that the application was mala fide for the purpose of delay. The learned Judge dismissed the petition. He says in short that all this should have been raised long ago. He points out that the Commissioner was appointed in 1933 and that the report was going to be submitted to him on the day of this order, namely, 3rd December 1935 and he declined to assist the petitioner in any way. Now it is an undoubted fact that although the two alienations so material to this application are dated February 1922 and April 1925 respectively, it is not suggested that at any time since the filing of the suit, at the hearing of the suit or in the appeal this all-important question, namely, that the alienated properties should be alloted to defendants 1, 14 and 15 only was ever raised and it seems to me that is of special importance in a case in which a decree has been passed by the High Court which in a very large measure hinges on a compromise. Especially in such a decree would I be reluctant to take any steps whatever which may have the effect of altering it. Before us there have been two arguments. There was a preliminary point taken by the respondents that this was not an appealable order. If it was an appealable order, the question arises, should we interfere or should we affirm that order Mr. Govindarajachari has argued before us that on the authorities which he has cited and with which I propose to deal shortly, this is an appealable order and his argument is largely based on the ground that it appears that in certain cases there can be a second preliminary decree and he also contends that in that second preliminary decree the Court can take into account matters which have arisen since the filing of the suit and since the first preliminary decree. A decree is defined in S. 2 of the Code as

the formal expression of adjudication 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 and may be either preliminary or final.

It seems to me on a plain reading of that definition that this is not a decreeand I am quite content to rest my reasons on this groundbecause at no time whatever has any of the matters which came before the learned Subordinate Judge been in controversy in this suit. It seems to me clear that the one objection of the parties was that the question of the allotment of these properties should not be in controversy in the suit because it has been deliberately kept out of every single stage. That being so, those cases which have been cited of which Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (23 All. 152. (P.C.), Raja Peary Mohan Mookerjee v. Manohar Mookherjee (27 C.W.N. 989), are examples, are not in point. It seems to me that in the cases where the second decree takes into account matters not originally dealt with, it has always been a case when those matters were in controversy and no authority has been cited to us for the proposition that it is possible to ask a Court by a second preliminary decree to introduce into the adjudication of the case matters that have never been in controversy at all and which had never even been discussed or in contemplation. On the merits, it is obvious in my view that the order of the lower Court was right. There is no obligation to pass this order in the circumstances, seeing that, as I have elaborated already, this was a totally new aspect raised at the last minute of the eleventh hour and the Court was perfectly entitled to withhold any sort of discretionary assistance which lay in it in order to assist the appellant. There are no reasons that I can see why S. 151 should have been invoked and no reasons whatever why instructions should have been given to the Commissioner at this stage to allot these properties to any particular parties. It may be that the appellant has rights outside this appeal. If he has, it is open to him to agitate them in a proper manner. So far as this appeal is concerned I consider it fails for the reasons which I have given and should be dismissed with costs of respondents 9 and 10.

Krishnaswami Ayyangar, J.

It is not necessary for me to say anything about the merits of this appeal as I think that it fails on the preliminary objection to its maintainability taken by the respondents. The objection is this, that the appeal is directed against an order and not a decree within the meaning of the Civil Procedure Code. On its face the order appealed against purports to be only an order, but that of course is not conclusive of its real character which has of course to be determined by reference to its true nature in the light of the provisions of the Civil Procedure Code. The order came to be passed on an application, I.A. No. 16 of 1935, in O.S. No. 47 of 1915 which has not been disposed of finally yet. The suit was one for partition instituted by the 1st respondent against the father Harikrishna and certain other persons of whom it is necessary to mention only his two younger brothers, respondents 9 and 10 born after the institution of the suit. The 2nd defendant was a cousin of the 1st respondents father and there was a partition between him and the 1st respondents father evidenced by a deed executed between the parties on the 3rd February, 19

15. The validity of that partition was challenged in the suit but it was upheld by the trial Judge who proceeded to pass a preliminary decree on the 29th December 1928. There was an appeal against the preliminary decree to this Court which was disposed of on the 7th November, 193

4. The preliminary decree was left untouched, at any rate, in regard to matters having any materiality for purposes of the present appeal. The result was that the 1st respondent was declared entitled to a half share in those items of family properties which had been allotted to his father under the partition. If the matter had stood there, there was nothing more left than for a Commissioner to be appointed with a view to effecting a division by metes and bounds of those items of properties liable to division under the preliminary decree. It appears that a Commissioner was actually appointed and he had before the date of the order of the learned Subordinate Judge completed the work entrusted to him and was going to make his report on the very day on which the learned Judge passed his order. However that may be, the question that arises for consideration is as to whether the order of the learned Judge amounted to a decree within the meaning of that term as defined in S. 2(2) of the Civil Procedure Code. The application on which the order came to be passed was filed for the purpose of inviting the Court to direct the exclusion of items 1 to 17 from the partition or to allot those items to the share of the 1st defendant and his two younger sons, namely, respondents 9 and

10. It would appear that, during the pendency of the suit, the 1st defendant the father had sold by two sale deeds dated 10th February, 1922 and the 21st April, 1925 these 17 items of properties to the appellant. The object of the appellant in making the application No. 16 of 1935 in the Court below was to see that these items of property were allotted to the shares of the father and his undivided sons, namely, respondents 9 and 10, so that the appellants possession of those properties might be left undisturbed. The application was rejected by the learned Judge, and the appeal is directed against this order.

The contention of the appellant is that, though termed an order, it is in effect and according to its legal character a second preliminary decree. It is contended that the view that there can be only one preliminary decree is erroneous and that there is no legal objection to there being in proper cases more than a single preliminary decree. The proposition appears to be warranted by authority and our attention has been drawn to a number of cases where a plurality of preliminary decrees has been held not to be illegal. But this is not enough to sustain the argument, for it is necessary for the appellant to establish that the adjudication contained in the order sought to be appealed against is in law a decree. S. 2(2) defines a decree as,

The formal expression of an adjudication 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 and may be either preliminary or final.

It seems to me that it is essential to bear in mind that it is not enough that there is a determination, or even a conclusive determination, of the rights of parties but that determination must be on matters in controversy in the suit . It is quite clear that in this case down to the date of the application the matters in controversy in the suit did not include the question of the allotment of the items of property liable to division in such a way as to give effect to the sales in favour of the appellant. No explanation is forthcoming as to why, during the long period which had elapsed between the dates of the sales and the date of the preliminary decree, this question was not brought before the Court in the proper way. The proper way is to obtain either an amendment of the written statement or file a supplemental one with leave of the Court previously obtained. This has not been done; and as has been pointed out by my learned brother, it was only at the very last moment that this question was sought to be agitated before the Court.

However that may be, the real question is whether the point raised in the application can be regarded as a matter in controversy in the suit. I understand the expression matters in controversy in the suit as meaning such matters as have been brought up for adjudication by the Court by the pleadings in the case so framed as to include them either in the beginning or by amendment made later with the sanction of the Court. Looked at from this point of view, it is impossible to regard the subject matter o f the application as being a matter in controversy in the suit within the meaning of the definition. If this is remembered, it is easy to understand the principle of the decisions that have been cited to us at the arguments on behalf of the appellant. If, amongst several matters properly brought into controversy, the preliminary decree covers some only, any subsequent order dealing with such matters as had not been already determined but left over may amount to a decree and be appealable as such. The decision of the Privy Council in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (25 All. 152) which refers to a later order dealing with the question of mesne profits, is consistent with this view as the question of mesne profits was undoubtedly a matter already in controversy in the suit. So also the decision of the Calcutta High Court in Raja Peary Mohan Mookerjee v. Manohar Mookerjee (27 C.W.N. 989) proceeded upon the footing that a later order specifying the manner in which the account was to be taken was a decree as it appears that order was one which dealt similarly with a question that had been already raised in the suit. The same observations apply also to Shankar Appaji v. Gangaram Bapuji (52 Bom. 360) and Ramanathan Chetty v. Alagappa Chetty (53 Mad. 378 [LQ/MadHC/1929/358] = 32 L.W. 329). Our attention was drawn to the decision of Piggot J. in Bharat Indu v. Yakub Hasan (35 All. 159) in which the learned Judge was inclined to take the view that an order subsequent to a preliminary decree dealing with a new set of facts which had come into existence later may be regarded as a decree for the purpose of appealability. If one examines the facts of that case, it is clear that the question raised related to the share which the plaintiff wanted in a suit for partition which he had instituted. In the first instance there was a preliminary decree which had declared his right in certain items of properties subject to a charge which the plaintiff was directed to pay and clear. Finding himself unable to find the necessary money for discharging that charge, the plaintiff prayed for the exclusion of the charged items and expressed his willingness to take a share out of he other items in suit. It is therefore plain that the controversy in the suit related to the proper share to be allotted to the plaintiff in the properties in suit, a claim which had been all along before the Court and the observations of the learned Judge in that case should be understood in the light of this fact. The opinion of Piggott, J. was not accepted by the Bench which heard the case ultimately, though it has been approved by Mr. Justice Mukherjee in the decision already mentioned, namely, Raja Peary Mohan Mookerjee v. Manohar Mookerjee (27 C.W.N. 989). The order of the learned Subordinate Judge must therefore be held to be one that did not deal with a matter in controversy in the suit and cannot therefore be regarded as a decree. The preliminary objection accordingly prevails. It will not do to bring up new matters by an application and then to contend that those very matters were to be adjudged on the footing that by the application itself they became matters of controversy in the suit. The proposition has only to be stated to be refuted. If such should be the view, there will be no end to new matters being raised at any stage by applications of this kind and this, I think, was never contemplated by the Code. At this stage I do not think I am called upon to say anything about the question whether the point can be raised if and when there should be an appeal from the final decree; and, speaking for myself, I do not desire to express any opinion upon this aspect of the matter.

The appeal therefore fails and is dismissed with costs of respondents 9 and 10.