Authored By : William Comer Petheram, James Quain Pigot,Henry Thoby Princep

William Comer Petheram, C.J.

1. No separate decree was drawn up in this case, but thelast two paragraphs of the judgment of the Subordinate Judge are as follows:

2. "For these reasons it is ordered that a partition ofthe properties mentioned in list No. 1 of the plaint, with the exception of thethakurbari and of the houses mentioned in list No. 2, be made. The defendantNo. 3 through his pleader states that his share may be separated also. Thedefendant No. 2 does not want her share to be separated. Thus one share(one-fourth) will be given to the plaintiff. Another share (one-fourth) will begiven to the defendant" No. 3. The remaining share (half) belonging to thedefendants Nos. 1 and 2 will be kept joint. The thakurbari and the thakursspecified in list No. 3 will be kept joint. A scheme for the worship of thethakurs by turns by the co-sharers will be made at the time of the passing ofthe final decree. The costs of the partition will be borne by the parties inproportion to their respective shares. The parties are required to state withintwo days whether they desire that the partition should be made by one or moreCommissioners."

3. The question which has been referred to this Bench iswhether the order contained in these paragraphs is appealable.

4. It is admitted on all sides that it is not appealable asan order, as it is not included in the list of orders in Section 588 of theCode from which an appeal is given by that section, and the only question iswhether it is within the definition of a decree in Section 2 and so appealableas a decree.

5. It has been said by the pleader for the plaintiff that hedoes not wish to argue that as no separate document has been drawn up andsigned, giving effect to the decision of the Court, there has been no formalexpression of an adjudication upon the rights claimed, and that point not beingraised before us by him or referred to us by the Divisional Bench, we need notdeal with it here.

6. Our answer to the question referred to us is that anorder in a suit for a partition, which declares the specific rights of theparties and the property to be partitioned, decides that the suit must bedecreed, as after such an order the suit could not be dismissed by the Court bywhich it was made, and is therefore an order which adjudicates upon the rightsclaimed and the defence set up in the suit, and which, as far as the Courtexpressing it is concerned, decides the suit within the definition of a decreein Section 2 of the Civil Procedure Code, and is therefore appealable as adecree.

James Quain Pigot, J.

7. I must add that had the point been raised, I should havefelt a difficulty in holding that a paragraph in the judgment, not drawn-up inthe form of a decree, and not embodied in a separate form, is, within the termsof the Code of Civil Procedure, a decree at all.

8. But the point is not raised before us, and I am not boundto deal with it.

Henry Thoby Princep, J.

9. I have had considerable difficulty in arriving at asatisfactory conclusion as to the effect that the Legislature intended to giveto an order within the terms of Section 396, Civil Procedure Code, directing apartition to be made by Commissioners, as in the case now before us. It iscontended that the order of the Court declaring the several parties interestedin Immovable property under partition and their several rights therein, amountsto a formal expression of an adjudication upon rights claimed, and that suchadjudication, so far as regards the Court expressing it, decides the suit, andconsequently that the order is a decree within the meaning of Section 2 of theCode. Section 396, however, provides that the Court in question shall pass adecree in accordance with the report of the Commissioners, if approved of, itwould, therefore, seem that that section contemplates that the final decree inthe suit should be passed after report made by the Commissioners. No doubt asimilar course is provided by Section 215-A in a suit in which it is necessaryto take an account. The definition of a decree as given in Section 2, however,specially declares that an order passed in such a case shall be within thedefinition of that term. I am inclined to agree with the Chief Justice of theBombay High Court in holding that this part of the definition of a decree inSection 2 is exhaustive and not explanatory [Coverji Luddha v. Morarji PunjaI.L.R. 9 Bom. 183 [LQ/BomHC/1885/14] and in that view, it would not, in my opinion, be impossibleto include an order, such as I have described, in a suit for partition as anadjudication deciding a suit. The actual decision of the suit would be when thedecree of the Court was finally delivered, and this, it would seem, is declaredby Section 396 to be after the report of the Commissioners. The observations oftheir Lordships of the Privy Council in the case of Rahimbhoy Habibbhoy v.Turner I.L.R. 15 Bom. 155; I.L.R. 18 IndAp 6 refer to an order in a suit foraccounts directing that such accounts be taken, and in considering whether suchan order was appealable as a final decree under Section 595, their Lordshipsheld that it complied with all the necessary essentials. Section 265, no doubt,describes as a decree for partition an order which leaves the partition itselfto be made by the Collector where the property to be divided is an estatepaying revenue to Government, but in such a case the proceedings of the CivilCourt are closed when such an order is passed and therefore, so far as thatCourt is concerned, the order finally decides the suit. The order wouldconsequently be a decree within the terms of Section 2. I observe that Section265 is reproduced from the previous Code of 1859, whereas the terms of Section396 are entirely new. The difficulty is increased by the definition of the termdecree, as it now stands, having been the result of a further modification ofthe Code. I think, therefore, that the matter before us is not without muchdifficulty. No doubt, for the convenience of the parties themselves, it isdesirable that an order, such as that now before us, should be regarded as adecree and be a proper subject for appeal; so that the parties, who are indispute in regard to the amount of their respective shares, may not be put tothe expenses of a partition by metes and bounds, when such partition may turnout to be absolutely infructuous if the Appellate Court should find that theshares have been wrongly determined. Consequently, as the larger interpretationis open to us, and this interpretation is decidedly for the benefit of suitors,I think it should be adopted.

.

Radha Dulari Koer vs.Dulhin Golab Koer (12.03.1892 - CALHC)