Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. The question we have to consider is, whether in thatappeal the plaintiff was at liberty to question the correctness of the order ofthe 28th of February, or whether an appeal from that order was then barred bytime, it not having been filed within thirty days of the 28th February. Thecase of Moheshur Singh v. Bengal Government 7 Moo. I.A. 283 was decided on the4th of February 1859, and in that case the Judicial Committee of the PrivyCouncil held that, as there was no law or regulation prevailing in , Indiawhich rendered it imperative upon the suitor to appeal from every interlocutoryorder by which he might conceive himself aggrieved, the Appellate Court mightcorrect any erroneous interlocutory order, although it was not brought underits consideration until the whole cause had been decided and brought beforethem by appeal for adjudication. In Forbes v. Ameeroovnissa Begum 10 Moo. I.A.340, decided on the 9th of December 1865, the Committee observed that, as theorder then in question was an interlocutory one which did not purport todispose of the cause, in was within the principle laid down in the case justcited, and that the appellant was not precluded from questioning it on theappeal from the final judgment in the case.

2. The same principle was also affirmed in Sheonath v.Ramnath 10 Moo. I.A. 413 on the 28th of November 1865.

3. The Indian Limitation Act came into operation on the 1stof October 1877, and by Article 152 of the second schedule to that Act anappeal to the Court of the District Judge under the Code of Civil Proceduremust be filed within thirty days from the date of the decree or order appealedagainst. Decrees and orders are defined, by Section 2 of the Civil ProcedureCode, which came into operation on the 1st of June 1882, and it was decided bya Full Bench of this Court, in the case of Dulhin Golab Koer v. Radha DulariKoer I.L.R. Cal. 463 that such an order as that of the Munsif of the 28th ofFebruary 1893, made in a suit for partition, was a decree and not an order withinthe meaning of the Civil Procedure Code, as it was an order which decided thatthe suit must be decreed in favour of the plaintiff. Section 591 of the CivilProcedure Code provides that all orders from which no appeal is given by theCode may be objected to at the hearing of the appeal from the final decree, andembodies so much of the principle contained in the cases of Moheshur Singh v.Bengal Government 7 Moo. I.A. 283, Forbes v. Ameeroonnissa Begum 10 Moo. I.A.340 and Sheonath v. Ramnath 10 Moo. I.A. 413 as the Legislature thought fit toinclude in the statutory law of this country, but neither the decisions of theJudicial Committee, nor the Legislature, have ever said that where an order ismade in a suit after which the suit cannot be dismissed, and which is a decreewithin the meaning of the Code, either party to the suit can appeal againstsuch decretal order on the hearing of an appeal by him from the final decree,although he has allowed the time given by law for appealing from such decretalorder to elapse without doing so. We think that the conclusion at which theDistrict Judge arrived in this case was correct, and the appeal will bedismissed with costs.

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Ram Chundra Dey vs. Boloram Dey and Ors. (09.09.1895 -CALHC)