[These appeals first came on for hearing on 27th, 28th and 30th November and 11th December, 1928 before their Lordships Sir William Phillips, Kt., and Thiruvenkatachariar, JJ.].

Sir William Phillips, KT., J. - The appellants in these appeals were partners in a firm with three others. During the pendency of that partnership, they borrowed money from the 1st respondent, hypothecating their share in the partnership profits. After the appellants had filed a suit for the recovery of their share in the partnership profits, the 1st respondent filed a suit to recover his loan and obtained a decree. That decree has been held to be a money-decree and that adjudication is binding on the parties here. After the petitioners had obtained a preliminary decree in their partnership suit the 1st respondent prayed for the execution of his money-decree by the attachment and sale of the one-fourth share of the appellants in the partnership and of the decree obtained by them in the partnership suit O. S. No. 9 of 1922. Objections were taken by the petitioners to the attachment and to the subsequent sale which were disallowed and the sale proceeded with. They then filed an objection to the sale and asked that it should be set aside. The 3rd respondent in C. M. A. No. 403 of 1926 is the auction-purchaser at that sale. These three appeals, therefore, relate practically to the same subject-matter, namely, the validity of the sale in execution.

Appeal No. 78 of 1926 being against the attachment only is not now pressed as being useless. The other two appeals have been argued.

The main point at issue is whether the preliminary decree in O.S. No. 9 of 1922 was a decree that can be sold in execution of another decree. Before the Subordinate Judge, the respondents contended that in execution sale the decree in O. S. No. 9 of 1922 was not sold, but only the right, title and interest of the judgment-debtors in the partnership. This contention has been upheld by the Subordinate Judge; but in this Court Mr. Krishnaswami Ayangar for the 3rd respondent is not prepared to adopt the same contention but argues that what he has purchased is what is contained in the sale certificate. Undoubtedly his contention is right and we have to see what was actually sold. The 1st respondent applied for the sale of the decree and although the earliest order of the Subordinate Judge did not specifically direct attachment and sale of the decree, yet his last order, dated 16th November 1925 was Attachment warrant for one-fourth share of judgment-debtors, as prayed for. This might be deemed to include attachment of the decree as well and in the schedule of the sale certificate we find that the property sold was the right to one-fourth share held by defendants 1 and 2 in the firm and the right, title and interest acquired by defendants 1 and 2 under the preliminary decree, which they obtained in O. S. No. 9 of 1922. When that order was passed, the right, title and interest of the present petitioners had merged in the preliminary decree and the only way of enforcing the right was by execution of that decree, or rather by asking for an account and obtaining their share through Court. In this view, it certainly appears to be the fact that the preliminary decree was sold in execution. The contention of the appellants in the first place is that the preliminary decree in O. S. No. 9 of 1922 is a decree for the payment of money within the meaning of O. 21, R. 53, Civil Procedure Code. They also contend that even if it is not such a decree it is not saleable in execution by reason of R. 178, formerly R. 184 of the Civil Rules of Practice prescribed by this Court Thirdly, they argue that if it be held that the decree was not sold, the right, title and interest of the appellants, after the passing of that decree, cannot be separated from the decree.

The first contention is the most important. The right of a partner on the dissolution of partnership is to have the assets of the partnership sold and the proper share of the proceeds paid to him. The preliminary decree declares that the appellants are entitled to one-fourth of the profits in the partnership and directs that accounts be taken, in order to ascertain the amount of that share. Is such a decree a decree for payment of money Undoubtedly, under that decree, the petitioners are entitled to payment of money and it is only on such payment that decree will be satisfied. It has consistently been held that a decree for unascertained mesne profits is a decree for money, vide Sharoda Moyee Burmonee v. Wooma Moyee Burmoonee (8 W.R., 9) and Ramaswami Aiyar v. Rama Aiyar (2 M.L.J., 288). In Viraragava v. Varada (I.L.R., 5 Mad., 123), it was held that the holder of a decree for unascertained mesne profits was entitled to rate able distribution in execution. This, in effect, holds not only that the decree is a decree for money but is also an executable decree even before the mesne profits have been ascertained. Under O. 21, R. 42:

Where a decree directs an enquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

It being held that a decree directing an enquiry as to mesne profits is in the nature of a money decree, it would appear that a decree directing the taking of partnership accounts which involves the payment in money of the partners share would also be a decree for the payment of money. In Rahimbhoy Habibbhoy v. C. A. Turner (I.L.R., 15 Bom., 155 (P.C.)), it was held by the Privy Council that a preliminary decree in a partnership suit was a final order appealable under the Civil Procedure Code of 1882. The order under that Code is equivalent to the preliminary decree under Act V of 1908.

The reason of that decision is, that the whole matters in dispute between the parties had been decided and what was left to be done was merely a matter of administration. Undoubtedly, disputes might arise in the taking of accounts but such disputes do not form the subject-matter of the partnership suit and must be deemed to be entirely new matters, which may or may not arise on the taking of accounts. The preliminary decree finally adjudicates the rights of the parties and all that remains to be done is a determination of the amount of money which will be payable. It is quite possible that the decree-holder may be found liable to the partnership on the taking of accounts rather than being entitled to a sum of money; but this can hardly affect the question as even in the case of mesne profits, it is quite possible that the profits, when ascertained, may be found to be nil. In these circumstances, it appears to me that the preliminary decree is a decree for the payment of money, within the meaning of O. 21, R. 53, Civil Procedure Code. If that is so, the procedure prescribed in that rule should have been adopted and instead of attaching and selling the decree, the decree-holder should have applied under R. 5

3. The suggestion that the decree cannot be executed by enforcing immediate payment of money is unimportant; for R. 53 (3) lays down that the decree-holder shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. The mode of execution in this case is by means of an application for the taking of accounts and for the ascertainment of the amount due under the decree. It was at first contended that even if this decree was a money-decree it might be sold instead of being attached in the manner prescribed by R. 5

3. The only authority that can be quoted in favour of this contention is the dictum of a single Judge in Subbaraya Rowthu v. Kuppusawmy Aiyangar (I.L.R., 34 Mad., 442) and in view of the consensus of opinion in all the Courts that a money-decree cannot be sold in execution. Mr. Krishnaswami Aiyangar rightly gave up this contention. The lower Courts order directing the sale of the decree and its subsequent sale are illegal and should be set aside.

Very long arguments have been addressed to us on the other two points, mainly, on the question whether, even if the preliminary decree is not a decree for payment of money, its sale was illegal. In the view I take on the first point, it is unnecessary to discuss the others. I would, however, remark that the lower Court was wrong in refusing to take evidence on the appellants allegation that the sale was brought about in pursuance of a conspiracy between the decree-holder, their judgment-debtors under the partnership decree and the auction-purchaser, who is the brother-in-law of one of those judgment-debtors. It was not until the appellants filed the suit against their partners that the first respondent brought his suit against the appellants and although the appellants had obtained a preliminary decree, which would undoubtedly enure to the benefit of the first respondent when it became merged in a final decree, yet the 1st respondent hurriedly brought to sale the preliminary decree when the amount that was recoverable under it was to the ordinary bidder a pure matter of speculation. It is difficult to believe that the 3rd respondent would have bid Rs. 9,500 for the appellants share of profits, unless he had very good information from his relations that share would realize more than Rs. 9,500. It is also significant that the respondents obtained stay of the decree in O.S. No. 9 of 1922, on payment of security of Rs. 15,000 and it was during that stay that the decree was sold and the present proceedings took place. These circumstances are prima facie evidence of a conspiracy and the Subordinate Judge should have allowed the parties an opportunity to prove or rebut their case in the view that he took that the sale was otherwise a valid one.

I would therefore allow C. M. As. Nos. 155 and 403 of 1926; but, as my learned brother is of a different opinion his order dismissing the two appeals with costs must prevail. The third appeal not being pressed is dismissed.

Thiruvenkatachariar , J.This appeal (C. M. A. No. 403 of 1926) is preferred by the judgment-debtors in O. S. No. 67 of 1922, Subordinate Judges Court of Cocanada, against an order of the said Court refusing to set aside a sale of property, held in execution of the decree passed against them in the said suit. Respondents 1 and 2 are the plaintiffs and the decree-holders on whose application the sale was made. The 3rd respondent is the auction-purchaser at the said sale.

The main ground urged on behalf of the appellants is that the property sold is a decree for money, which was passed in favour of the appellants in O. S. No. 9 of 1922 in the Subordinate Judges Court of Cocanada, and that though such a decree can be attached in execution of another decree, the sale of the decree is prohibited by R. 53 (1) of O. 21, the attaching decree-holders right being only to execute the attached decree. The appellants contend that the sale of the decree is void as it contravenes t he provision aforesaid. They further contend that even if the decree attached and sold is not a decree for money, the sale is nevertheless invalid, as it contravenes R. 184, now R. 178 of the Civil Rules of Practice, which says that no decree shall be ordered to be sold in execution of another decree.

The respondents, on the other hand, contend that what was sold was the interest of the appellants in a partnership of which they were members and the right which they (appellants) obtained under the preliminary decree in O. S. No. 9 of 1922 which was brought by them for the dissolution of the partnership and taking the necessary accounts: that the preliminary decree operated only to define the extent of the Appellants rights in the firm and directed the usual partnership accounts to be taken; that such a decree is not a decree for the payment of money, within the meaning of R. 53 of O. 21. If it was not such a decree, the sale of it does not contravene R. 53 or any of the provisions of the Civil Procedure Code and it is therefore valid. As regards R. 184 of the Civil Rules of Practice their contention is that if it is to be construed as prohibiting the sale of decrees, other than those referred to in sub-rule 1 of Rule 53, the rule is ultra vires to that extent. They also contend that under the terms of the decree obtained by respondents 1 and 2 against the appellants the sale of the interest of the appellants in the partnership is valid irrespective of the question, whether the preliminary decree is saleable. The sale of the appellants interests in the partnership, it is contended, result, in a devolution of their interest in favour of the purchaser during the pendency of the suit, as no final decree has yet been passed in the suit and that in virtue of such devolution of interest, the purchaser is entitled to step into the shoes of the appellants and continue the suit under R. 10 of O. 22, for obtaining a final and executable decree.

To appreciate the contentions thus raised by both parties, the material facts have to be referred to. The appellants were carrying on a business in firewood in partnership with some others. To contribute their share of the capital and of the working expenses for that business, they borrowed from respondents 1 and 2, various sums of money. When pressed to repay those amounts, they executed a mortgage in favour of the respondents on 11th February, 1921, of their interest in the partnership. O. S. No. 67 of 1922 was brought by the respondents 1 and 2 to enforce that mortgage and in that suit they impleaded not only their debtors (the appellants), but also the other partners in the firm. On the 28th October 1922, a decree was passed in their favour against the appellants, who were defendants 1 and 2 in the suit and who remained ex parte , the other partners being exonerated. The decree was in the form appropriate to a suit to enforce a mortgage of immovable property. It declared the amount due on the mortgage to the plaintiffs, gave time to the mortgagors for payment till the 28th December 1922 and further directed that if payment was not made on or before the said date, the mortgaged property or a sufficient part thereof including the interests of defendants 1 and 2 in O.S. No. 9 of 1922, on the file of the Court, be sold and that the net proceeds of the sale be applied in payment of what is declared to be due to the plaintiffs as aforesaid, together with subsequent interest and costs and that if the net proceeds are not sufficient to pay such amounts and subsequent interest and costs in full, the plaintiffs are at liberty to apply for a personal decree for the balance. The decree-holders (1st and 2nd respondents) treating the decree as one passed under O. 34, Civil Procedure Code, as on the face of it it appeared to be, applied for a final decree. That application was opposed by the judgment-debtors (appellants) on the ground that the mortgaged property was movable property. The objection was upheld by the Subordinate Judge, who himself had passed the decree. He held in his order, dated 24th September, 1923, that as the property, mortgaged was moveable property, no final decree can be passed, nor is one necessary and that the plaintiffs have got to apply for an attachment of the right. It is obvious that the right here referred to is the interest of the judgment-debtors in the partnership which was the property which they had mortgaged to the plaintiffs. O.S. No. 9 of 1922, which is referred, to in Cl. 2 of the decree, is a suit which was instituted by the appellants for the winding up of the said partnership and taking the necessary accounts. That suit, though instituted prior to O. S. No. 67 of 1922, had not come on for trial either when the decree in O. S. No. 67 of 1922 was passed or the order holding that no final decree was necessary was passed. On the 2nd May, 1924, a preliminary decree in the partnership suit was passed, declaring who the partners were and the extent of plaintiffs (appellants) interests in the partnership and also directing the appointment of a Commissioner for taking the necessary accounts. The appellants were also awarded rds of the costs incurred by them.

Against that decree appeals were preferred to this Court (A. S. Nos. 286 of 1924 and 17 of 1925) by some of the defendants therein, the plaintiffs being impleaded as respondents in both. During the pendency of those appeals, the respondents 1 and 2 applied, on 3rd September 1925, for the execution of their decree in O. S. No. 67 of 1922 against their judgment-debtors (the appellants). In their application, they prayed for the issue of notice to defendants 1 and 2, under O. 21, R. 22, that a sale be held of the share of the defendants 1 and 2 in the properties mentioned in the schedule, i.e., the interests of the judgment-debtors in the partnership and that the decree obtained by defendants in O.S. No. 9 of 1922 may be attached by means of a prohibitory order, under R. 53, O. 21, that the same may be sold and the amount paid to the petitioner. The appellants objected to the execution of the decree, on the grounds (1) that the decree was not an executable decree and was merely a declaratory decree and (2) that the prayer for the sale of the decree cannot be granted, as the sale is prohibited by R. 53 of O. 21. The Subordinate Judge overruled the objections and ordered the sale as prayed for. The sale was held on the 26th February 1926 and the property sold was purchased by the 3rd respondent for Rs. 9,500. The sale was also confirmed by the Court on 6th March 1926 and a sale certificate was issued to the purchaser, in which the property sold is described as follows:

The right to 1/2th share held by defendants 1 and 2 in the firm, in the name and style whereof the defendants herein have been carrying on business at Cocanada, in respect of firewood purchased by them in the Government forests situate in Coringa, Kandikuppa and other villages and the right, title and interest acquired by defendants 1 and 2 under the preliminary decree which they obtained in O. S. No. 9 of 1922 on the file of this Court, brought by them against defendants 3, 4 and 5, in respect of the business of that firm and which through prohibitory order has been brought to attachment for the amount due under the decree in this suit, and their shares in the firm have been sold for Rs. 9,500, towards the amount due under the decree in this suit.

Out of the purchase money the decree-holders were fully paid the amount due, to them under the decree. The contentions of both parties with reference to the sale have already been stated. It cannot be and is not disputed that a partners interest in a partnership is saleable property, within the meaning of Sect. 60 of the Civil Procedure Code and may be attached and sold, in execution of a decree obtained against the partner by his creditor: See Parvatheesam v. Bapanna (I.L.R., 13 Mad., 447) and Jagat Chunder Roy v. Iswar Chunder Roy (I.L.R., 20 Cal., 693) [LQ/CalHC/1893/24] . In both those cases reliance is placed upon the following observations of their Lordships of the Privy Council in Deendyals case (4 I.A. 247), in which the question arose as to the rights of an execution creditor and of a purchaser at an execution sale, in regard to the interests of an undivided co-parcener in the Hindu family. Their Lordships, in holding that such interest was liable to be attached and sold, observed as follows:

It is sufficient to instance the seizure and sale of a share in a trading partnership, at the suit of a separate creditor of one of the partners. The partner could not have himself sold his share so as to introduce a stranger into the firm without the consent of his co-partners; but the purchaser, at the execution sale acquires the interest sold with the right to have a partnership accounts taken, in order to ascertain and realize its value.

If necessary the purchaser has a right to institute a suit for that purpose against the partners of the firm. The right of the judgment-creditor of a partner to execute the decree against the interests of the partner in the firm is now provided for in R. 49 of O. 21. Under Sub-R. 2 of that rule (to quote only so much of it as is relevant to the present case):

The Court may, on the application of the holder of a decree against a partner make an order charging the interest of such a partner in the partnership property and profits with payments of the amount due under the decree and may by the same or subsequent order, make an order for the sale of such interest, or other order as might have been directed or made, if a charge had been made in favour of the decree-holder by such partner.

Sub-R. 4 provides that every application for an order under Sub-R. 2 shall be served on the judgment-debtor and on his partners. Turning to the decree passed in the present case, it will be seen that the suit itself is treated as one to enforce a mortgage and the decree charges the mortgaged property, with the payments of the amount due to the mortgagees (plaintiffs): and if default is made in the payment of the mortgage money, the mortgaged property is to be sold. This decree, with the directions as to sale of the interests of the mortgagors in the partnership, had been passed long before the preliminary decree in the partnership suit was passed. But as that suit was pending at the date of the decree in this suit; the mortgaged property was also referred to, as the interests of the defendants 1 and 2 in that suit. The effect of the further order, declaring that no final decree is necessary in the suit cannot have the effect of wiping out the provisions of the decree as to the sale of the mortgaged property, expressly ordered by the decree itself. I may here observe that hypothecation of movables is here recognized as a valid security. As between the parties to the transaction (as in the present case), the security is enforceable by a suit brought for the sale of the hypotheca, whatever equities may have to be recognized in particular cases in favour of bona fide purchasers of the property without notice of the hypothecation. No appeal having been preferred against the decree as framed, the direction for sale of the mortgaged property became final. Does the passing of a preliminary decree in the partnership suit, to which plaintiffs in this suit were no parties and which makes no reference to the decree in this suit, render the provision as to sale of the mortgaged property nugatory, as the arguments advanced on behalf of the appellants would seem to imply In my opinion the preliminary decree cannot have any such operation. That decree was passed under O. 20, R. 15 which says:

Where the suit is for the dissolution of a partnership or the taking of the partnership accounts, the Court, before passing a final decree may pass a preliminary decree, declaring the proportionate share of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved and directing such accounts to be taken or other acts to be done as it thinks fit.

All that the preliminary decree which was passed in this case determined was who were all the partners of the firm and what their respective interests were in the partnership business. The decree in these respects being of a declaratory character, the only effect of this decree is to define the rights of the several partners, in accordance with the partnership agreements, on the basis of which accounts have to be taken for the passing of the final decree. So far as the judgment-creditor of a partner is concerned beyond defining what the judgment-debtors interest in the partnership is, the decree does not in any way affect his right to sell the interest as so declared. If under the decree he had obtained against the appellants he had the right to sell the judgment-debtors interest as it was prior to the preliminary decree, I fail to see how the declaration as to that interest in the preliminary decree can affect that right. In the present case, as already observed, the suit itself was one to enforce a charge of the judgment-debtors interest in the partnership and the decree directed that the mortgaged property be sold. Though the decree for sale had been passed prior to the preliminary decree, yet the application for execution of the decree by sale of the mortgaged property came to be made after the preliminary decree was passed and so the petition for execution of the decree, in addition to the prayer for sale of the mortgaged property also prayed that the decree obtained in O.S. No. 9 of 1922 be attached by a prohibitory order and that the same may be sold. In the sale proclamation the property to be sold was described in the same manner as it is in the sale certificate, the description of the property referring both to the rights to th share of the defendants 1 and 2 in the partnership and the right, title and interest acquired by defendants 1 and 2 in O. S. No. 9 of 1922. The reference to the decree was necessary, in order that intending purchasers may know what the interest of the judgment-debtor was in the partnership, as declared in the preliminary decree. In my opinion, the effect of the sale is to convey to the purchaser whatever interests defendants 1 and 2 had in the partnership, as declared in the preliminary decree, which would of course be subject to such variations, as may be made therein by the Appellate Court in any appeal, which may be preferred from the preliminary decree. So far as the sale is concerned, it was held pursuant to the direction in the decree itself. The suit being instituted to enforce the mortgage by sale of the hypotheca, all that was required was compliance with R. 49, which requires notice of the sale to be given to the other partners of the firm. Neither R. 53 of O. 21, nor R. 184 of the Civil Rules of Practice applies to this case. On this question, the case in Subbaraya Rowthu v. Kuppusawmy Aiyangar (I.L.R., 34 Mad., 442), seems to be directly in point. In that case both the learned Judges agreed that neither Sect. 273 of the Old Code, now O. 21, R. 53, nor R. 184 of the Civil Rules of Practice, has any application to a mortgage decree, directing the sale of the hypotheca, which was itself a mortgage decree for sale and that in execution of that decree the judgment creditor had the right to sell the hypotheca, i.e. , the decree for sale in enforcement of a mortgage. One of the learned Judges. Abdur Rahim, J., upheld the sale of the mortgaged decree upon another ground also, which relates to the construction of R. 53, the validity of which it is unnecessary to consider for the purposes of the present case. In this view, as to the effect of the decree itself which was passed in this case, the consideration of the questions which were raised on behalf of the appellants as, to the sale being void as contravening R. 53, sub-rule (2), becomes unnecessary. As however that question and the question as to the operation of R. 184 and its validity were argued at great length on both sides, I wish to state briefly the view I take on those questions as it also tends to support the same conclusion.

The question whether a preliminary decree for dissolution of a partnership is a decree for payment of money, within the meaning of R. 53 (i), is not one which is free from doubt or difficulty. Ex facie it is not a decree for payment of money, as there is no such direction in the decree, except in so far as it relates to the costs decreed to the plaintiffs. The same sub-section also brings in a decree for sale in enforcement of a mortgage or charge. In such cases, the decree itself declares the amount payable by the mortgagor (judgment-debtor) to the mortgagee and directs the sale of property, if payment of the said amount is not made within the time fixed for payment. In both the cases dealt with by Sub-R. (i), the amount due to the judgment-creditor is an ascertained sum of money. Sub-Cl

. (2) of R. 53 says that when a decree under Sub-Cl. (i) is attached, the Court: shall proceed to execute the attached decree. This provision indicates that the attached decree is an executable decree. A preliminary decree which directs the taking of accounts, is no doubt final, as regards the questions settled by that decree, including the question of the liability of the defendants to render an account to the plaintiff. Such a decree was held by their Lordships of the Privy Council, in Rahimbhoy Habibbhoy v. C.A. Turner (I.L.R., 15 Bom., 155 (P.C.)), to be a final decree, within the meaning of Sect. 595 of the Civil Procedure Code of 1882, for the purpose of appeal to His Majesty in Council. Reliance is placed upon the observations of their Lordships in this case, for the contention that a decree directing accounts to be taken is a decree for money for all purposes. Those observations are:

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 itself an assertion that, if a balance is found against the defendant on those accounts, the defendant is bound to pay it. Therefore, the form of the decree is exactly, as if it affirmed the liability of the defendant to pay something on each one of these claims, if only the arithmetical result should be worked out against him.

Under the present Code, the preliminary decree in a partition suit should be in form No. 21 and the final decree in form No. 22 of Appendix D of Act V of 1908. The latter form shows that the inquiry into the accounts of the partnership may result in a final decree for the payment of money being passed either against the defendant and in favour of the plaintiff or vice versa. As their Lordships put it, the decree for taking of accounts amounts to this: That if a balance is found against the defendant on those accounts, the defendant is bound to pay the same to the plaintiff. If on the other hand the balance is found against the plaintiff, he will be bound to pay the same to the defendant. And form No. 22 of Appendix D therefore provides for the final decree being passed either in plaintiffs favour or in defendants favour as: the case may be. See also Ram Charan Bulaqi (83 I.C., 880). It seems to me to be very doubtful if such a decree can be held to be a decree for the payment of money either in favour of the plaintiff or in favour of the defendant, until the accounts are taken and the result is settled. No authority bearing directly on the point has been cited, in support of such a contention. In the case in Sidlingappa v. Shankarappa (I.L.R., 27 Bom., 556) [LQ/BomHC/1903/23] , which is relied on as supporting that view, the point does not appear to have been decided by the Court. The decision proceeds on the footing of an admission by the parties that it can be regarded as a money decree. The appellants learned advocate relies also on R. 42 of O. 21 which says.

Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him is ascertained, be attached, as in the case of an ordinary decree for the payment of money.

He contends that a preliminary decree directing the taking of accounts in a partnership suit comes within the expression, any other matter in this rule and such a decree is therefore executable by attachment of the property of the judgment-debtor as if it were a decree for money. This rule deals expressly with decrees for mesne profits and rents. In the case of those decrees, there can be no doubt as to who the judgment-debtor is. He can only be the defendant in the suit, but never the plaintiff. It may be that upon accounts being taken, nothing may be found due but no decree can be passed in those cases rendering the plaintiff liable to the defendant. That is the essential difference between those decrees and a decree in a partnership suit, directing accounts to be taken, as in the latter case, who will be the judgment-debtor will depend upon the result of the accounts. I think therefore that such a decree does not come within the purview of R. 42. That rule shows what a decree for payment of money ordinarily means and it is because a decree for mesne profits or rent is not a decree for money in its ordinary sense that R. 42 has been enacted for decrees for rents or mesne profits being treated as if they are decrees for the payment of money. And the scope of the rule itself is limited to enabling the holder of such a decree to get an order for attachment of his judgment-debtors property, pending the further enquiry ordered and the passing of the final and executable decree. The cases in Viraragava v. Varada (I.L.R., 5 Mad., 123) and Sharoda Moyee Burmonee v. Wooma Moyee Burmoonee (8 W.R., 9) decide merely that when the holder of a decree for mesne profits not yet ascertained attaches his judgment-debtors property, under the sections of the old Codes of 1877 and 1859 corresponding to R, 42 of O. 41, he may claim rateable distribution with other judgment-creditors, out of the assets realized by the sale of the judgment-debtors property. They do not bear out the contention that such a decree is for any other purpose to be regarded as a decree for money. It was argued that the maxim certum est quod certumReddi potest applies. That maxim may no doubt apply, so far as the ascertainment of the amount due from one party to the other is concerned, but I do not see how upon that maxim it could be said who should be assumed to be the judgment debtor. I have already referred to the express language of sub-clause (1) of R. 5

3. The corresponding section of the old Code Sect. 273, did not include decrees for sale in enforcement of a mortgage or charge and there was a conflict of authority as to whether such decrees were decr ees for payment of money, within the meaning of that section. The legislature in enacting the present Code settled that point by including such decrees in Sub-Cl. (1) of R. 5

3. If the question whether a decree for sale in enforcement of a mortgage was a debutable one and the answer to it remained in doubt till the present Code was passed, it seems to me that the question whether a decree which directs certain accounts to be taken upon the result of which a decree may be passed for the plaintiff or the defendant as the result may turn out to be, is a much more debatable point and I see no sufficient ground for holding that such decrees come within the purview of R. 53 (i).

The next contention urged on behalf of the appellants, which has to be noticed is that even if the preliminary decree for the dissolution of a partnership cannot be regarded as a decree for the payment of money, the sale of such a decree is nevertheless invalid, as it contravenes R. 184 of the Civil Rules of Practice. That rule says: No decree shall be ordered to be sold in execution of another decree. The respondents contend that this rule is ultra vires , if it is to be applied to decrees other than those falling under sub-rule 1 of R, 5

3. The rule in question has been in existence for a very long time and was apparently made under one of the Codes of Civil Procedure, which were in force before the present Code was enacted. Sect. 157 of the present Code says:

that rules made under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect, as if they had been made under the Code and by the authority empowered thereby in such behalf.

Code is defined in Sect. 2 as including rules. It is contended for the respondents, that the rule is not consistent with the present Code and it is therefore invalid, even if it might have been valid before. The provisions of the Code, which are referred to in support of this contention, are Sect. 60 and O. 21, Rr. 53 and 6

4. Under Sect. 60, the kinds of property specifically mentioned therein and all other saleable property moveable and immoveable belonging to the judgment-debtor, or over which he has a disposing power, which he may exercise for his own benefit, are liable to attachment and sale in execution of a decree. The proviso to the section enumerates the kinds of properties, which are not liable to such attachment or sale. A decree of a Court is not one of the species of property which is so exempted.

That a decree which does not confer a right, which is merely personal to the decree-holder, is property which is transferable cannot be disputed. The decree-holder himself can transfer such a decree. But to entitle the transferee to execute the decree, the assignment must be in writing, as required by O. 21, R. 16. That such decrees can also be attached and sold in execution of another decree, as the property of the judgment-debtor has been held in Delhi and London Bank Limited v. Partab Singh (I.L.R., 28 All., 77 (F.B.)). The same view has been taken as regards decrees other than decrees for money in Gopal Nanashet v. Joharimal and Dada Balshet v. Joharimal (I.L.R., 16 Bom, 522). There does not seem to be a rule made either by the High Court of Allahabad or Bombay corresponding to R. 18

4. The decisions referred to are clear authorities for the position that in the absence of any valid rule, prohibiting such a procedure, the sale of a decree in execution of another decree is not per se illegal. On principle, it should be held that whatever decree may be transferred by the decree-holder himself may also be sold in execution of a decree passed against him. If then Sect. 60 were the only provision of the Code, which bears on this question, any rule which says that no decree shall be ordered to be sold in execution of another decree will not be consistent with that section. The effect of such a rule will be to add one more particular to the particulars, which are expressly enumerated in the proviso to Sect. 60, as being not liable to attachment or sale. That such a Rule cannot be validly made may also be inferred from R. 53 of O. 21. Under Sub-R. (1) of that Rule, only the kinds of decree specified there in are, by necessary implication from the provision in Sub-R

. (2) of the same Rule held to be not liable to be sold, though they may be attached in execution of a decree. Sub-R

. (4) of the same Rule applies to other decrees than those which are referred to in Sub-R. (1) and in the case of such decrees, the Rule merely provides for the manner of the attachment and does not prohibit their sale. R. 184 seems to me to be not consistent with R. 53 and on that ground also it must be held to be invalid, in so far as the sale of decrees other than those falling under Sub-R. (1) is concerned. R. 64, O. 21, which was also referred to, does not carry the point further, as it merely says that any properties liable to be sold may be sold.

The appellants advocate referred to Sect. 128 of the Code and contended that the Rule will be invalid, only if it is inconsistent with the provisions of the body of the Code. But that section relates only to Rules to be made under the present Code by the High Courts with the advice of the Rule Committee constituted under Sect. 12

3. It has no reference to Rules made under any previous Code. I am therefore inclined to hold that the contention that R. 184 is invalid under the present Code, in so far as it prohibits sales of decrees other than those which are dealt with by R. 53 (1) in execution of another decree, is well-founded. In this view, it is unnecessary to consider whether the Rule has been validly made under Sect. 652 of the repealed Code.

The only further contention urged on behalf of the appellants which remains to be noticed is that the sale was fraudulent being the result of a conspiracy between the defendants in O. S. No. 9 of 1922 and the judgment-creditors in O. S. No. 67 of 1922 and that the purchaser of the property was only a benamidar for the defendants in O. S. No. 9 of 1922: (see paragraph 5 of the affidavit filed on behalf of the petitioners). This question is dealt with by the learned Sub-Judge in paragraph 6 of his order and I agree entirely with his conclusion. As he points out the only circumstance alleged by the appellants, as indicating fraud in the matter of the sale, is that the purchaser is the brother-in-law of the 7th defendant in the partnership suit and that the purchase was really made on behalf of the defendants in that suit. The only ground on which the finding of the learned Judge is attacked in the Memorandum of Appeal is ground No. 12, in which the point taken is that the sale is illegal, because the purchaser is only a benamidar for the judgment-debtors in O.S. No. 9 of 1922, who could not purchase the same. No authority was cited on behalf of the appellants, in support of their contention that the defendants in the partnership suit could not purchase the interests of the plaintiffs therein which was sold in execution of a decree obtained against them in another suit by their creditor. I think the Subordinate Judge is right in holding that the sale could not be set aside on that ground. So far as the decree-holders are concerned, it is not even alleged that they were promised any extra benefit, other than what was due to them under the decree, and there is no averment even of any specific acts on their part, constituting the alleged fraud. It is argued that the decree-holder hurried the execution to the serious prejudice of the appellants and that he should have waited for the final decree being passed in the partnership suit and that by his oppressive procedure the appellants interest worth about Rs. 60,000 was sold for Rs. 9,500. If this contention is entitled to any weight, the result will be that the respondents, whose business is money-lending and who had lent the mortgage money prior to November 1921 and had obtained their decree on the mortgage in October 1922, carrying interest only at 6 per cent, will have to wait, for nobody can say how many more years, will elpase before they can expect any payment for their decree. This argument totally ignores the rights of the creditor, which cannot but be materially prejudiced thereby. However, if the appellants interests are so valuable as they say it is, which at best is problematical, it may be asked how it was they were unable to prevent the sale by raising the decree amount which was only about a sixth in value of their interests. This contention was therefore, in my opinion, rightly overruled by the lower Court.

Lastly, it was urged for the respondents that as the sale was confirmed and no appeal has been preferred against the order confirming the sale, that order has become final and this appeal must therefore be dismissed. I do not think there is any force in this contention. In the case of the sale of moveable property, there is no provision corresponding to R. 92 of O. 21, which applies only to sales of immovable property and under which an order has to be made confirming the sale. Rule 81, which applies to the present case, says that the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly. The order confirming the sale is not in the record, sent up by the lower Court, but the issue of the sale certificate amounts to vesting the property in the purchaser and thereupon he may apply to the Court under O. 22, R. 10, to continue the partnership suit, as the person on whom the interest of the plaintiffs therein has devolved, in order to obtain a final executable decree in that suit and he will be entitled to such an order: see Muhammad Masthulla Khan Jarao Bai, (I.L.R., 37 All., 226). If the sale can be impeached on the ground that it is void under R. 53 or voidable on the ground of fraud, I do not see how the issuing of the sale certificate can take away the right of the judgment-debtors to object to the sale on those grounds under Sect. 47, Civil Procedure Code, or to appeal against the order passed on their application to set aside the sale on those grounds.

In the result, I would dismiss both the appeals with costs.

By Court. The final order is suspended pending arguments on the applicability of Cl. 36 of the Letters Patent.

These appeals coming on for hearing on 12th, 13th, 14th and 21st December, 1928, the Court delivered the following.

Sir William Phillips, J:Owing to the difference of opinion between my learned brother and myself, there remains for decision the question whether the provisions of Sect. 98 of the Civil Procedure Code or the provisions of Cl. 36 of the Letters Patent should be applied. A similar provision to that contained in Sect. 98 was first enacted: in 1861 by an Act amending the Civil Procedure Code of 18

59. Subsequently in 1862, Letters Patent were issued establishing the High Court of Madras and these Letters Patent were modified in 1 865, Cls. 15 and 16 of the Letters Patent conferred appellate jurisdiction on the High Court and in Cl. 36, it is declared that in the exercise of appellate jurisdiction a certain procedure is to be adopted. That this overruled Act 23 of 1861 was held in Nundeeput Mahta v. Mr. Alexander Shaw Vrquhart (13 W.R., 209), where it was held by the Calcutta High Court that both Cl. 15 and Cl. 36 of the Letters Patent prevailed over the previous Act of 1861. In 1877, the Civil Procedure Code was again amended and also in 1882, and in neither of these Acts, is there any section providing that the Code shall not affect the Letters Patent. It has accordingly been held that under the Code of 1882, Sect. 575 supersedes the provisions of the Letters Patent, so far as Cls. 16 and 36 are concerned, but not in the case of Cl. 15. The latter point was decided by the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Debi (I.L.R., 9 Cal., 482 (P.C)); but there has been no pronouncement by the Privy Council on the former point In Sri Gridhariji Maharaj Tickait v. Purushotum Gossami (I.L.R., 10 Cal., 814 [LQ/CalHC/1884/78] (F.B.)), Appaji Bhivrav v. Shivlal Khubchand (I.L.R., 3 Bom., 20

4. (F. B.)) and Husaini Began v. The Collector of Muzaffarnagar (I.L.R., 11 All., 176) and other cases to which I need not refer in detail, it was held that Sect. 575 (of Act XIV of 1882) supersedes Cl. 36 of the Letters Patent. When the Code of 1908 was enacted, a provision was inserted, i.e. Sect. 4:

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force.

Notwithstanding this provision, it has consistently been held that Sect. 98 of that Code overrides Cl. 36 of the Letters Patentvide Bhuta v. Lakadu Dhansing (I.L.R., 43 Bom., 433 (F.B.)) and many other cases in each Court. There is one exception to this series of cases, namely, Veeraraghava Reddi v. Subba Reddi (I.L.R., 43 Mad., 37 [LQ/MadHC/1919/131] = 10 L.W., 281), where it was held, without discussing the question, that the procedure in Cl. 36 was to be followed even in the case of an appeal from a mofussil Court. In other cases, it was held that Cl. 36 prevailed in appeals from the Original Side and in Chappan v. Moidin Kutti (I.L.R., 22 Mad., 68 [LQ/MadHC/1898/3] (F.B.)) that view was affirmed contrary to the previous practice in the Court, in view of the decision of the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Debi (I.L.R., 9 Cal., 482 (P.C)). I do not propose to deal in detail with the many cases in which the question is discussed both in this Court and in other High Courts, where the view has prevailed that Sect. 575 applies in all cases to which Sect. 96, Civil Procedure Code, directly applies but not in other cases such as appeals from revision and appeals from the Original Side. If, therefore, the general trend of the decisions is to be followed, the present case would be governed by Sect. 98, Civil Procedure Code, for we are dealing with an appeal from a mofussil Court. The decision in all these cases was arrived at, before the pronouncement of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and in Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W., 362 (P.C.)). We also have now Act XVIII of 1928 under which the following amendment to Sect. 98 is made:

To Sect. 98 the following sub-section shall be added, namely:

Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

The Letters Patent were also amended in 1927, to take effect from February of this year and this amendment prescribed a procedure to be adopted in the case of equal division of opinion between Judges deciding an appeal, so as to be more in conformity with the provisions of Sect. 98. The question, therefore, is whether, in view of these two decisions and the subsequent legislation, the prior cases which decided that Sect. 98 was to be applied in appeals coming within the jurisdiction conferred by Cl. 16 of the Letters Patent and that Cl. 36 applied in other cases, are still good law. The point has been considered in this Court in Venkatasuhbiah v. Venkatasubbamma (21 L.W., 721) and it was held that the law had not been altered, but in the case no reference is made to the decision in Subitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W., 362 (P.C.)) nor of course to Act XVIII of 1928. In Pandu v. Jamnadas (26 B.L.R., 470) it was held that Cl. 36 applies in a case arising in the mofussil when the appeal lies only under Cl. 15 of the Letters Patent. In Punjab Akhbarat & Press Co. v. Ogilvie (I.L.R., 7 Lah., 179), it was held that Sect. 98 still applies in appeals from mofussil Courts although the Chief Justice appears to have been inclined to the opposite view, but as he followed the trend of prior decisions, the matter was not res integra. In Suresh Chandra Mukherjee v. Shiti Kanta Banerjee (I.L.R., 51 Cal., 666 at p. 672 (F.B.)), decided by a Full Bench of three Judges, Newbould, J., says:

We accept the contention that the decision of the Judicial Committee in Bhadas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)), shows that the procedure laid down in Sect. 98 of the Civil Procedure Code was wrongly applied in the present case.

and that case was one arising in appeal from the mofussil. In a later case, Prafulla Kamini Roy v. Bhabani Nath Roy (I.L.R., 52 Cal., 1018) [LQ/CalHC/1925/335] , it was held by Page, J., who was one of the Judges in Suresh Chandra Mukherjee v. Shiti Kanta Banerjee (I.L.R., 51 Cal., 669 [LQ/CalHC/1924/447] (F.B.)), that the decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) must be confined to its own facts and laid down no general rule. Walmsley, J., who was previously of a different opinion, deferred to the opinion of Page, J., because it was in agreement with the previously expressed opinion of Suhrawardy, J. From all these cases, it would appear that there is considerable doubt on the subject and it is therefore necessary to examine these two cases, i.e., Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W. 362 (P.C.)) somewhat carefully. In addition to these two cases we have now the amendment to Sect. 98, which has so far as appears from the Reports, never been considered by any Court till now. In Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W. 362 (P.C.), which was decided on 20th January, 1921, it is held that O. 41, R. 10, Civil Procedure Code, applies to an appeal under Cl. 15 of the Letters Patent, but in the judgment of Lord Sumner in that case, there are certain remarks which seem to have a general bearing. In referring to the prior decisions of Indian Courts, notably the Courts in Madras, he says at page 490:

It is true that in Sesha Ayyar v. Nagarathna Lala (I.L.R., 27 Mad., 121) [LQ/MadHC/1903/43] Bhasbyam Aiyangar, J., said that in a Letters Patent Appeal from a single Judge a Respondent could not apply for security for costs, because Sect. 549 of the Civil Procedure Code, which corresponded to O. 41 R. 10, of the Code of 1908, applied only to appeals to the High Court from Subordinate Courts, and that in Sabhapathi Chetti v. Narayanasami Chetti (I.L.R., 25 Mad., 555), the Court said that the provision made by Sect. 15 of the Letters Patent was entirely foreign to the provisions of the Civil Procedure Code relating to appeals from one Court to another, but both these cases followed and purported only to apply Chappan v. Mordin Kutti (I.L.R., 22 Mad., 68 [LQ/MadHC/1898/3] (F.B.)), a Full Bench decision of 1898, and Toolsee Money Dassee v. Sudevi Dassee (I.L.R., 26 Cal., 361 [LQ/CalHC/1899/23] (F.B.)). These are cases in which the point actually decided was that the appeal expressly given by Sect. 15 of the Letters Patent is not interfered with by Sect. 588 of the Code of 1882 on the principle generalia specialibus non-derogant following Hurrish Chunder Chowdhry v. Kalisunderi Debi (I.L.R., 9 Cal., 482 (P.C.)), From a consideration of these older cases, which were very fully argued and considered, it appears that the decisions in I.L.R. 25 and I.L.R., 27 Mad., laid down their effect much more widely than was necessary and overlooked the distinction between rules which took away existing rights of appeal and rules which recognize these rights but regulate the procedure of the Court in which such appeals are pending. It is also plain that the words in Sect. 104 of the Act of. 1908 are inserted for the purpose of giving effect to the decisions of the Full Bench at Madras and of the High Court at Calcutta, for the excepting words save as otherwise expressly provided by any law cut down the general words, and thus carry out the very reasoning of those two judgments.

We see that Lord Sumner recites with approval Chappan v. Moidin Kutti (I.L.R., 22 Mad., 68 [LQ/MadHC/1898/3] (F.B.)), which follows Hurrish Chunder Chowdhary v. Kalisunderi Debi (I.L.R., 9 Cal., 482 (P.C.)) but held that the two subsequent cases Sabhapathi Chetti v. Narayanasami Chetti (I.L.R., 25 Mad., 555) and Sesha Ayyar v. Nagaratana Lala (I.L.R., 27 Mad., 121) [LQ/MadHC/1903/43] laid down the effect of the former cases much more widely than was necessary. In fact, the general trend of the judgment is to show that the Civil Procedure Code is applicable to High Courts with the proviso that it does not affect any of the provisions of the Letters Patent. Immediately after this judgment, namely, on 20th January 1912 we have the decision in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)). There it was held that in an appeal from the Original Side, Cl. 36 of the Letters Patent was not affected by Sect. 98, Civil Procedure Code. It was no doubt observed:

This view of the section is not novel, for it has been supported by the judgments in Madras, in Allahabad and in Calcutta. See Roop Laul v. Lakshmi Doss (I.L.R., 29 Mad., 1) Lachman Singh v. Rom Lagan Singh (I.L.R., 26 All., 10) and Nundeeput Mahta v. Mr. Alexander Shaw Urquhart (13 W.R., 209).

but the decision in the judgment is not arrived at on the same grounds but is based upon Sect. 4 of the Civil Procedure Code of 1908, namely,

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force.

Lord Buckmaster then observes in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)).

There is no specific provision in Sect. 98, and there is a special form of procedure which was already prescribed. That form of procedure Sect. 98 does not, in their Lordships opinion affect.

This is a very general statement and is wide enough to include the statement that Sect. 98 does not affect the procedure laid down in the Letters Patent. That procedure is given in Cl. 36 which applies to cases arising both under Cl. 15 and Cl. 16. It would, therefore, appear that this dictum would apply equally to Cls. 15 and 16 of the Letters Patent and this is supported by the judgment of Lord Sumner in Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W. 362 (P.C.)) where he observes.

In conclusion, there is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters.

This is a very general pronouncement and supports the view that if the procedure under Cl. 36 is to be adopted in cases falling within Cl. 15, it should also be adopted in cases falling within Cl. 16.

It is quite clear that before 1877, the appellate procedure of this High Court was governed by Cl. 36 and not by the Procedure Code of 1859, as amended in 1861. This is clear from the decision in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart (13 W.R., 209). The Codes of 1877 and 1882, being subsequent in date to the Letters Patent of 1865, may be held to have overruled the Letters Patent, for there is no provision in those Codes corresponding to Sect. 4 of the present Civil Procedure Code and that was the view adopted by all the High Courts in India. The same view was taken even after the Civil Procedure Code of 1908 came into force, but reference is not made in any of the decisions to the effect of Sect. 4 of that Code. The effect of that section in one particular instance, is clearly laid down in Bhaidas Shindas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and that this effect should be held to be of general application is supported by the language of Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and also the observations in Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W., 362 (P.C.)). That this is the correct view is also supported by the recent amendment of Sect. 98, which in terms says that Sect. 98 shall not affect any provision of the Letters Patent. In the statement of objects and reasons, it is said that the object of this amendment is to enact more clearly the provision which was previously implied in Sect. 4 of the Act. This seems to me to be clear proof that it was the intention of the legislature, in making this amendment, to declare that the procedure laid down in Cl. 36 of the Letters Patent should be generally applicable in all appeals heard by the High Court and was unaffected by Sect. 98 of the Code.

It is suggested that the amendment of Sect. 98 merely leaves the law as it was before, but as there has been no pronouncement of the Privy Council saying that Sect. 4 did not protect Cl. 36 equally with Cl. 15, which it was definitely held to protect, it cannot be said that Sect. 98, prior to the amendment, necessarily affected Cls. 16 and 36. The distinction drawn between the jurisdiction of the High Court under Cl. 15 and Cl. 16 was based on the Language of Sect. 96; for, it has been held that Sect. 96 refers only to appeals from Subordinate Courts and not to appeals from one Judge of the High Court to the High Court, Sect. 96 does not in terms exclude appeals from one Judge to the other Judges of the High Court; for, it includes all appeals from any Court exercising original jurisdiction to the Court authorised to hear appeals from decisions of such Court. This language is wide enough to include appeals from one Judge to the other Judge of the High Court. If that is so then Sect. 96, applies to all appeal s and Sect. 98 which clearly relates back to Sect. 96 must also deal with all appeals. If Sect. 98 does not affect appeals under Cl. 15, how can it be held to affect appeals under Cl. 16 It appears to me that in view of the judgments of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W., 362 (P.C.)) Sect. 4 of the Civil Procedure Code of 1908 was enacted in order to save, amongst other enactments, the provisions of the Letters Patent. That this was the view of the Legislature is now made clearly the very recent amendment of Sect. 98, Civil Procedure Code.

Another question now arises, namely, whether, if Cl. 36 be applied in this case, its provisions at the date of the filing of the appeal should be adopted, or its provisions as they now stand after amendment. I am inclined to take the latter view; but, as the question has been referred to a Full Bench by another Bench of this Court, the decision on the point may be deferred until the opinion of the Full Bench is known.

That being so, it would seem to be advisable to refer the first question at issue for the decision of a Full Bench, as in my view the two decisions of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and Sabitri Thakurain v. Savi (48 I.A., 76 = I.L.R., 48 Cal., 481 = 14 L.W., 362 (P.C.)), coupled with the recent amendment of Sect. 98, show that the cases hitherto decided are no longer good law. I would, therefore, refer for the decision of a Full Bench the following question:

Is the procedure to be adopted by the High Court in case of an equal division of opinion between the Judges to be governed by Cl. 36 of the Letters Patent or by Sect. 98 of the Code of Civil Procedure

Thiruvenkatachariar, J. The question whether Sect. 98 of the Civil Procedure Code or Cl. 36 of the Letters Patent applies, when the Judges hearing an appeal preferred to the High Court from a decree of a Subordinate Court differ in their opinion arises in this case and has been argued at considerable length on both sides. For the appellant it is contended that Cl. 36 of the Letters Patent applies to all appeals which are heard by the High Court, whether the appeals are preferred to it under Sect. 96 of the Civil Procedure Code, or Cl. 15 of the Letters Patent.

The contention for the respondent, on the other hand, is that Cl. 36 of the Letters Patent applies only to appeals preferred to the High Court under the Letters Patent and that Section 98 of the Civil Procedure Code applies to appeals preferred to it under Section 96 of the Civil Procedure Code. This point has been discussed in several cases both before and after the decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)) and the conclusion at which all the High Courts have arrived is that Section 98 of the Civil Procedure Code applies to appeals preferred to the High Court from the decree of Subordinate Courts. The question has been considered in these cases from every conceivable point of view that hardly anything useful can be added to the discussion of the point; and whatever our own opinion might be, we sitting as a divisional bench would not be justified in dissenting from that view. So far as this case is concern ed, there is a further point to be considered, which has not been considered in the previous cases, for the reason that it arises out of a recent amendment of Section 98 of the Civil Procedure Code, by Act XVIII of 1928 which came into force on the 25th September 1928. By that amendment, the following words were added to Sect 98 of the Civil Procedure Code:

Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

It should be here mentioned that Cl. 36 of the Letters Patent was itself amended recently and the amendment came into force, so far as this High Court is concerned, on the 1st February 1928. That amendment materially modifies the procedure, which was laid down in that clause, as to how the appeal should be disposed of, in case the Judges hearing the appeal were equally divided. In that case the clause as amended says:

That they shall state the points upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

Before this amendment, the rule laid down in the clause was that in such a case the opinion of the senior Judge shall prevail. Sect. 98 of the Civil Procedure Code as it stood before the recent amendment prescribes a different rule for a case, where the Judges are equally divided in opinion. In such a case it says that the decree appealed from shall be confirmed 5 but there is a proviso which says that

Where the Bench hearing an appeal is composed of two Judges belonging to a Court consisting of more than two Judges and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other judges and such point shall be decided according to the opinion of the majority (if any) of the Judges, who have heard the appeal including those who first heard it.

It will be seen that the recent amendment of Cl. 36 of the Letters Patent is modelled on the provisions of the Civil Procedure Code, with this difference, viz , (I.A., 181 = I.L.R., 45 Bom., 711 = 14 L.W., 7 (P.C.)) that the reference of the points in difference for the decision of another Judge or judges is not discretionary , as in Sect. 98 of the Civil Procedure Code but obligatory ; (2) the reference to be made under Cl. 36 is not to be confined to a question of law only as in Sect. 98. Civil Procedure Code, but to extend to questions of fact also, on which the opinion is divided. The amendment of Cl. 36 of the Letters Patent thus incorporates and extends to the rule enacted in Sect. 98 to all the points (be they questions of fact or questions of law), on which opinion is divided, and the reference to those points is also made obligatory. It seems to me that the subsequent amendment of Sect. 98, Civil Procedure Code, is consequential upon the amendment of Cl. 36 and if the question is considered in the light afforded by the provisions of the Code and of the Letters Patent as they now stand, it seems to be fairly obvious that the intention of the legislature in amending Sect. 98 as stated above is to make it clear that all appeals to the High Court, whether they are preferred under the Letters Patent or under the Civil Procedure Code, shall, when the opinion of the Judges hearing the appeal is equally divided, be governed by one and the same procedure, viz. , that laid down in Cl. 36 of the Letters Patent. I may, however, observe that the actual wording of the amendment and its position in the Code leaves room for the contention; advanced on behalf of the respondent, that all that the amendment of Sect. 98 says is that the operation of the Letters Patent, with regard to the procedure relating, to appeals preferred under the Letters Patent is not intended to be affected by the procedure laid down in Sect. 98, Civil Procedure Code. In fact in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)), the procedure laid down in Sect. 98 was applied by the High Court to an appeal preferred under the Letters Patent from a decree of a single Judge passed on the Original Side of the High Court and the decree of the trial Judge was affirmed, though, if Cl. 36 of the Letters Patent applied, it should have been reversed. Their Lordships of the Privy Council on appeal held that the procedure prescribed in Cl. 36 should have been followed and not that prescribed in Sect. 98, Civil Procedure Code.

It was argued for the appellant that the effect of the decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab (48 I.A., 181 = I.L.R., 45 Bom., 718 = 14 L.W., 7 (P.C.)), and of the recent amendment of Sect. 98 is not only to make Cl. 36 of the Letters Patent applicable to all appeals heard by the High Court, whether they, are preferred under the Letters Patent or under the Code, but that in the present case what should be applied is not Cl. 36 of the Letters Patent as it now stands, but Cl. 36 as it stood before the amendment. Speaking for myself, I am unable to accept such a contention. The reference to the provisions of the Letters Patent of any High Court which i s made in the recent amendment of Sect. 98, is in my opinion, to the provisions of the Letters Patent as they stood when the said amendment came into force. Both Sect. 98 Civil Procedure Code, and Cl. 36 of the Letters Patent are, if I may express my opinion on the point, mere rules of procedure, differing in that respect from Cl. 15 of the Letters Patent, which gives a right of appeal in certain cases from the decision of a single Judge or of a division Bench. In that view, if Cl. 36 applies to the present case, I should think that it is the clause as amended which has to be applied and not the clause as it stood before the amendment came into force. This question is already under reference to a Full Bench. I need only add that after the recent amendment of Cl. 36, there seems to be no reason why the same procedure should not be applied in the case of all appeals heard by the High Court, whether the said appeals are preferred to it from the decrees passed in the exercise of its original jurisdiction, or from the decrees of Subordinate Courts and that, having regard also to the recent amendment of Sect. 98 of the Civil Procedure Code, the question should, so far as this High Court at least is concerned, be set at rest by a Full Bench.

I therefore concur in the order of reference to a Full Bench proposed by my learned brother.

By Court. Final orders must now await the result of our reference to Full Bench.

[These appeals came on for final hearing on 7th February 1929 before a Full Bench constituted as above].

[1] The question referred to the Full Bench is:

Is the procedure to be adopted by the High Court in case of an equal division of opinion between the Judges to be governed by Clause 36 of the Letters Catent or by Section 98 of the Code of Civil Procedure

[2] The Letters Patent were issued in 1862 and were modified in 1865 but previously a section like Section 98 had been introduced into the Civil Procedure Code of 1859 by the Amending Act of 1861. Between 1865 and 1877, it could not be suggested that the Civil Procedure Code prevailed over the Letters Patent. It was obvious that the Letters Patent prevailed over the Civil Procedure Code. In case of difference of opinion between two Judges, the procedure in the Letters Patent was the only procedure to be followed. This was accordingly held in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart. (1870) 13 W.R. 209 A fresh Civil Procedure Code was passed in 1877 and another in 1882 and in these Codes Section 575 similar to Section 98 of the present Code was inserted as in the Code of 18

59. As these Codes were after the Letters Patent, the question arose whether Section 575 superseded Clause 36 of the Letters Patent. That the Indian Legislature could alter or amend the provisions of the Letters Patent was clear from Clause 44 of the Letters Patent. Rut for Clause 44 the question would never have arisen. One would have thought that an attempt by the Indian Legislature to alter or amend the provisions of the Letters Patent would have been made in express and unambiguous terms and not left to be inferred by implication. No express attempt was made by the Legislature. Still apparently it was contended that impliedly the Indian Legislature did intend to supersede Clause 36 of the Letters Patent by Section 575 of the Civil Procedure Code. This argument prevailed in Appaji Bhivrav v. Shivlal Khubchand (1870) 13 W.R. 209 a decision of a Full Bench, Westropp, C.J., Melvill and West, JJ. They said:

We consider that the provisions of the Letters Patent in this respect have been superseded by Section 575 of the Act X of 1877--so far as regards cases to which Section 575 is applicable.

[3] This was followed in Sri Gridhariji Maharaj Tickait v. Purushotum Gossami (1870) 13 W.R. 209 even in the case of an appeal from the Original Side of the High Court under Section 15 of the Letters Patent and in Hussaini Begam v. The Collector of Muzaffarnagar and other cases. But meanwhile the Privy Council held in Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 I.A. 4: I.L.R. 9 C. 482 (P.C.), that Clause 15 of the Letters Patent was not supreseded by Section 588 of the Civil Procedure Code. Accordingly in Chappan v. Moidin Kutti (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was held that Clause 15 of the Letters Patent was not controlled by any of the provisions of the Civil Procedure Code and this was applied in Sabapathi Chetti v. Narayanasami Chetti (1901) I.L.R. 25 M. 555: 11 M.L.J. 346 As a result of the group of cases beginning with Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was then held in Allahabad (where there is no Original Side) that Clause 36 of the Letters Patent was not superseded by Section 575 of the Civil Procedure Code. This was followed in Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M.1. though the latter case is from the Original Side. It will be noticed that the reasoning in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. 10 is perfectly general and if Clause 36 of the Letters Patent was not to he considered as superseded by Section 575 of the Civil Procedure Code, it must be so as regards all appeals whether the appeals themselves are under the Civil Procedure Code or under Clause 1 5 of the Letters Patent. In spite of this obvious consideration and the decision in Lachman Singh v. Rant Lagan Singh (1903) I.L.R. 26 A. 10 a practice arose in this Court according to which it was supposed that the only effect of the decision in Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M. 1. was to make Clause 36 of the Letters Patent applicable to appeals under Clause 15 of the Letters Patent but not to appeals under the Civil Procedure Code as to which, in case of difference of opinion, Section 575 of the Civil Procedure Code would continue to apply as before, Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.). But this practice is not represented by any reported decision in this Court. In Surajmal v. Horniman (1917) 20 Bom. L.R. 185, it was held that Clause 36 of the Letters Patent applied in an appeal from the Original Side but the reasoning on which the judgment was based was perfectly general and will equally apply to appeals under the Civil Procedure Code. In Veeraraghava Reddi v. Snbba Reddi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.), it was held that even in the case of appeals from mufassal Courts, Clause 36 of the Letters Patent applied, but the question was not discussed. But in Bhuta v. Lakadu Dhansing (1918) I.L.R. 43 B. 433 (F.B.) the opposite conclusion was arrived at by a Full Bench. Then we have got the decision in Bhaidas Shivdas v. Bai Gulab (1921) L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.), a decision of the Privy Council. That was a case on the Original Side of the Bombay High Court. There was an appeal. The learned Judges differed and Section 98 of the Civil Procedure Code was applied. Under Section 08, Sub-section (2), the question was referred to another Bench and was decided adversely to the plaintiff. This must have been before the Full Bench decision in Bhuta v. Lakadu Dhansing (1921) L.R. 48 T.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.). The plaintiff then carried an appeal to the Privy Council on the ground that Section 98 was wrongly applied. The Privy Council held that Clause 36 of the Letters Patent ought to be applied.

[4] Lord Buckmaster who delivered the judgment of the Judicial Committee rested his conclusion by reference to Section 4 of the Civil Procedure Code. His reasoning is similar to that in Surajmal v. Horniman (1917) 20 Bom. L.R. 185 and was perfectly general, so that even in the case of appeals under the Civil Procedure Code, Clause 36 should apply. Lord Buckmaster expressly approves of the decision in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A.

10. which was a case of an appeal under the Code. The point was accordingly raised in this Court in Venkatasubbiah v. Venkatasubbarama (1924) 21 L.W. 721. 1

3. (192S) I.L.R. 7 Lah. 179. The case in Bhaidas Shivdas v. Bai Gulab (1921)L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.), was cited before the learned Judges but the fact that Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A.

10. was approved by the Privy Council seems to have been overlooked. Venkatasubba Rao, J., relied on the previous practice in this Court in applying Section 98 of the Civil Procedure Code to appeals under that Code and he held that Bhaidas Shivdas v. Bai Gulab (1921) L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.) was not intended to overrule the prior rule of law as represented by the practice of this Court. This is the first decision of this Court, apart from practice, decided after a consideration of the point that Section 98 and not Clause 36 of the Letters Patent applied to appeals under the Civil Procedure Code. In Puma Chandra Chatterji v. Narendra Nath Chowdhry (1925) 29 C.W.N. 755 (F.B.). Walmsley, J., held that Clause 36 ought to apply and a similar conclusion was arrived at by a Bench of three Judges in Suresh Chandra Mukherjee v. Shift Kanfa Banerjee (1924) I.L.R. 51 C. 669 at 672 (F.B.). But in a later case in Prafulla Kamini Roy v. Bhabani Nath Roy (1925) I.L.R. 52 C. 1018. Page, J., who was a party to Suresh Chandra Mukherjee v. Shift Kanta Banerjee (1924) I.L.R. 51 C. 669 at 672 (F.B.)changed his opinion and held that the decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab (1924) I.L.R. 51 C. 669 at 672 (F.B.), must He limited to appeals under Clause 15 of the Letters Patent and does not apply to appeals under the Civil Procedure Code. Walmsley, J., who was a party to Purna Chandra Chatterji v. Narendra Nath Chowdhry (1925) 29 C.W.N. 755 (F.B.) deferred to the opinion of Page, J., and was willing to change his opinion. Page, J., invited the legislature to solve the doubts and difficulties by an express enactment. In Punjab Akhbarat and Press Co. v. Ogilvie , it was held that Section 98 should apply though the Chief Justice appeared to be inclined to the opposite view if the matter were res integra.

[5] At this stage of the Case Law, Act XVIII of 1928 was passed amending section 98 of the Code of Civil Procedure. An explanation was added to Section 98 to this effect:

Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

[6] This explanation is perfectly clear and is intended to provide that cause36 of the Letters Patent should not be governed by Section 98 of the civil procedure code. I have referred to the earlier history of the Case Law not for the purpose of construing this amending Act in the light of such history--a practice condemned by the House of Lords in Bank of England v. Vagliana Brothers (1891) A.C. 107 but for a different purpose to be refer-ed to presently. Mr. Krishnaswami Aiyangar, the learned Advocate for the respondents, contended that the Amending Act does not lead to the conclusion that in appeals under the Civil Procedure Code, Clause 36 of the Letters Patent applies. His argument may be thus stated; the Amending Act is declaratory in its nature; it is not intended to alter the law; the law as previously understood was that Section 98 applies to appeals under the Civil Procedure Code and Clause 36 of the Letters Patent applies to appeals under the Letters Patent and this was not intended to be altered by the Amending Act; the effect of the Amending Act is only to confirm the previous state of the law. There is a fallacy in the whole of this argument. It is true that the Amending Act is intended to be declaratory, that is, not only is its object to make the law clear from its date but also to make the Act retrospective ; that is, there is no change in the law. The law both before the amendment and after the amendment is the same. To this extent I agree with the argument of the learned Advocate that the amendment is declaratory. But to assume from this that the Amending Act did not intend to alter the law as expounded by the decisions up to that date does not follow. In the first place, it is not correct to say that there is a well-understood rule of law prior to the amendment in the manner stated by the learned Advocate for the respondents. The decision in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. and Veera-raghava Reddi v. Subba Reddi (1919) I.L.R. 43 M. 37: 37 M.L.J.449 indicate the contrary. In my opinion, the object of the amendment is to make it now perfectly clear that for any purpose Clause 36 of the Letters Patent should never be controlled by the Civil Procedure Code. This was the view of Lord Buckmaster in Bhaidas Shivdas v. Bai Gulab (1924) I.L.R. 51 C. 669 at 672 (F.B.) and the cases approved therein. The Amending Act is really the response of the legislature to the tation of Page 1.

[7] The learend Advocate for the respondents addressed another argument which also proceeded on the footing that there is a well-understood practice or rule of law prior to the Act. I have already shown that there is no such well-understood practice or rule of law; but apart from this, this argument s otherwise equally fallacious. He relied on Section 4 of the Amend-ing Act which saves prior existing rights, etc. Clause 3 of the section saves any principle or rule of law previously established "notwithstanding that the same may have been derived by, in or from any enactment hereby repealed." This shows that Section 4 applied only to the repealing part of the enactment and has nothing to do with the amending part of the enactment. If any rule of law under an enactment amended by the Act of 1928 was intended to be saved, the language used would have been "from any enactment hereby amended or repealed." Therefore this argument of the learned Advocate also fails.

[8] The result is that it is now beyond all doubt that Clause 36 of the Letters Patent applies to all appeals. It may be asked, when does Section 98 of the Civil Procedure Code have any operation and why should the legislature not say that the section does not apply to Chartered High Courts instead of adding an explanation to the section The reply is that Section 98 applies now only to Courts other than the Chartered High Courts, that is, the Chief Courts and Courts of judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain Section 98 as applicable even to Chartered High Courts but to make the application subject to Clause 36 of the Letters Patent. If, at any time, Clause 36 of the Letters Patent ceases to exist, Section 98 will come into operation. It is to attain this particular result that the explanation was added to Section 98 instead of saying that Section 98 does not apply to Chartered High Courts at all. I would answer the question referred to us thus:

The procedure adopted by the High Court should be governed by Clause (36) of the Letters Patent.

Kumaraswami Sastri, J.

[9] I agree.

Reilly, J.

[10] I agree.