Kamini Debi v. Promotha Nath Mukerjee — 1914 DIGILAW 12 (CAL)

JUDGMENT 1. The question for decision in this appeal relates to the competency of an appeal presented to the District Judge. The Defendant is a shebait of an endowment created by one Ram Kamal Mukerjee on the 4th February 1845, the history of which is set out in our judgment in Aghore Nath Mookerjee v. Kamini Debi 11 C. L. J. 461 (1909). The Plaintiffs seek a declaration that the Defendant is utterly unfit for the post of shebait, and they ask accordingly for a decree for her removal and for the appointment of a fit and proper person to the post of shebait according to the provisions of the Will of the founder. The Plaintiffs also claim an account of the income and expenditure of the endowed properties from the Defendant. For the preservation of the property during the pendency of the suit, they also pray for a temporary injunction to restrain the Defendant from wasting the estate, or in the alternative for the appointment of a Receiver. Finally the Plaintiffs seek a decree for damages against the Defendant and invite the Court to draw up a scheme for the future management of the endowed properties and the performance of the worship as contemplated by the founder. The Defendant resists the claim on the ground amongst others that the Plaintiffs have no right to maintain the suit. Twenty issues were framed; of these the first was in these terms : -- " Have the Plaintiffs any cause of action? Have the Plaintiffs any right to sue?" This was amplified in the seventeenth, eighteenth and nineteenth issues in which the grounds for the contention that the Plaintiffs have no right to sue were specifically set out. The seventeenth issue raised the question whether the Plaintiffs had a right to sue inasmuch as one Aghore Nath Mookerjee was alive. The eighteenth issue raised the question whether the Plaintiffs were competent to maintain the suit inasmuch as they were not born during the life-time of the founder. The nineteenth issue raised the question, whether, upon a proper construction of the Will of the founder, the Plaintiffs were entitled to maintain the suit. The twentieth issue then raised the question, whether the Defendant was estopped be reason of the doctrine of estoppel from raising the questions mentioned in the three preceding issues. The nineteenth issue raised the question, whether, upon a proper construction of the Will of the founder, the Plaintiffs were entitled to maintain the suit. The twentieth issue then raised the question, whether the Defendant was estopped be reason of the doctrine of estoppel from raising the questions mentioned in the three preceding issues. The Court of first instance first took up these issues in bar and decided them against the Defendant. Before the suit could be heard on the merits, the Defendant lodged an appeal before the District Judge against the decision of the Subordinate Judge in which he had held that the Plaintiffs were competent to maintain the suit and that the question of their competency could not be raised by the Defendant by reason of the decision in previous suits. Before the District Judge, the objection was taken that the appeal was incompetent inasmuch as there was no decree which could be questioned by way of appeal. The District Judge gave effect to this contention and dismissed the appeal. On the present appeal, it has been argued on behalf of the Defendant that the decision of the Subordinate Judge upon the question of the right of the Plaintiffs to maintain the suit was a preliminary decree within the meaning of sec. 2 of the CPC of 1908 and that the propriety of such a preliminary decree could be questioned by way of appeal to the District Judge. In fact, it has been contended that in view of the provisions of sec. 97 of the Code, it is obligatory upon the Defendant to question the propriety of the decision of the Subordinate Judge at this stage. In support of this view reliance has been placed upon the cases of Krishnaji v. Maruti Appa 12 Bom. L. R. 762 (1910). and Sidha Nath Dhonddeb v. Gonesh Govind I. L. R. 37 Bom. 60 (1912). 2. Clause 12 Bom. L. R. 762 (1910). of sec. 2 of the CPC defines the term " decree " to mean the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. L. R. 762 (1910). of sec. 2 of the CPC defines the term " decree " to mean the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. It has not been disputed that in the case before us there is no formal expression of adjudication by the Court of first instance. But the Defendant is in no way to blame for this circumstance. An application was made to the Subordinate Judge in this behalf and he was invited to draw up a decree. He refused to accede to this application, on the ground that his decision was not equivalent to a preliminary decree. Consequently if his decision was in reality a preliminary decree, the mere omission on the part of the Court to embody its effect in a formal expression would not negative the right of the party affected to prefer an appeal. The substantial question for examination is, whether the adjudication has in fact determined the rights of the parties in regard to one of the matters in controversy in the suit. It has been contended on behalf of the Appellant that one of the matters in controversy in the suit was, whether the Plaintiffs were competent to maintain the suit and that the Subordinate Judge has adjudicated upon this matter. If the expression "matter in controversy " is understood in its widest possible sense, the argument advanced on behalf of the Appellant may be supported. But the question remains, whether the expression " matter in controversy in the suit " should be understood in this comprehensive sense. On behalf of the Respondents it has been argued that the expression " matter in controversy in the suit " refers to the subject-matter of the litigation, and that if this view were not adopted, every question in dispute between the parties in the course of litigation may be deemed to fall within the expression " matter in controversy in the suit." In our opinion, the view put forward on behalf of the Appellant is unsound and should not be accepted, though it is supported by the decision in Sidha Nath Dhonddeb v. Gonesh Govind I. L. R. 37 Bom. 60 (1912). 60 (1912). in that case, the Subordinate Judge gave his decision on issues relating to misjoinder, limitation and jurisdiction in favour of the Defendants and directed the parties to adduce evidence on the merits. He refused to draw up a preliminary decree embodying his decision upon the question of limitation, misjoinder and jurisdiction. The High Court of Bombay held that he committed a material irregularity in the exercise of his jurisdiction. With all respect for the learned Judges who decided that case we are unable to accept the interpretation they put upon the expression " matter in controversy in the suit." The result of this interpretation is that the parties would be bound, in view of sec. 97 of the Code, to challenge by way of immediate appeal the decision of the Court upon every one of the points in dispute between them in the course of the litigation, so that the trial of the suit might be interrupted from time to time and might ultimately be extended over many years. We are not prepared to hold that this could ever have been intended by the Legislature. Besides this, if the decision of the Court upon each of the points in dispute is deemed a preliminary decree, there must be a number of preliminary decrees in the suit. But as was pointed out in the case of Bharut Indu v. Yakub Hasan I. L. R. 35 All. 159 (1913)., the intention of the Legislature appears to have been that there should be only one preliminary decree in the suit to be followed by one final decree [In the matter of Raja Pertab Chunder Singh 7 W. R. 222 (1867)]. The cases where the Legislature contemplated the preparation of a preliminary decree are specified in rules 12 to 18 of Or. 20 of the Code; it is not disputed that the case before us is not comprised within any of those rules. It is further clear that the preliminary decree ascertains what is to be done, while the final decree states the result achieved by means of the preliminary decree. If this distinction is borne in mind and is applied to the case before us, what is the position ?. The decision of the Subordinate Judge, so far as it goes, merely holds in favour of the Plaintiffs that they are entitled to maintain the suit. If this distinction is borne in mind and is applied to the case before us, what is the position ?. The decision of the Subordinate Judge, so far as it goes, merely holds in favour of the Plaintiffs that they are entitled to maintain the suit. Their right to obtain the reliefs claimed against the Defendant has not yet been affirmed. On behalf of the Appellants, however, much reliance was placed upon the decision of the Judicial Committee in Bhup Indar Bahadur v. Bejai Bahadur 5 C. W. N. 52 : s. c. I. L. R. 23 All. 152 (1900)., where their Lordships held that the decision of a Court, determining the extent of the period for which the judgment-debtor was liable to pay mesne profits to the decree-holder, was a decree within the meaning of the Code. There is plainly no real analogy between the case before the Judicial Committee and the case now before us. The order made by the Subordinate Judge does not decide the extent or character of the liability of the Defendant; it does not affirm that she is or is not liable to be removed from the position of shebait or to be called upon to render accounts in respect of the trust. Her position now is radically different from what it would have been, if the Plaintiffs had obtained a real preliminary decree directing her removal from office or declaring their right to take accounts from her. Should that stage be ever reached, the Defendant would undoubtedly be entitled to prefer an appeal against such a decision. 3. On these grounds, we must hold, upon a construction of sec. 2 of the Code, that the contention of the Appellant is not well founded and that the appeal preferred by her to the District Judge has been rightly adjudged incompetent. The view we take is in accord with that adopted in the cases of Shib Saran Sha v. Janoki Nath Dey 18 C. L. J. 78 (1913)., Parsotam Rao v. Radha Bai 10 All. L. J. 78 (1912). and Kashi Nath v. Nathu Ram 9 Ind. Cas. 1019 (1911). The case of Krishnaji v. Maruti Appa 12 Bom. The view we take is in accord with that adopted in the cases of Shib Saran Sha v. Janoki Nath Dey 18 C. L. J. 78 (1913)., Parsotam Rao v. Radha Bai 10 All. L. J. 78 (1912). and Kashi Nath v. Nathu Ram 9 Ind. Cas. 1019 (1911). The case of Krishnaji v. Maruti Appa 12 Bom. L. R. 762 (1910)., on which the Appellant relied, is distinguishable on the ground that, in the opinion of the Court, the decision challenged by way of appeal involved a determination of the rights of the parties in regard to the manner in which the account between them should be taken, that is, it embodied a decision upon the question of the rights of the parties in respect of one of the matters in controversy in the suit itself. This clearly cannot be affirmed of the decision of the Subordinate Judge in the present case. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.