Judgement Appeal from a judgment and decree of the High Court in its appellate jurisdiction (September 1, 1913) affirming, with a slight variation, a judgment and decree of Fletcher J. (April 22, 1912). The suit was instituted in the High Court by the first respondent as one of the sons and executor of Ebrahim Soleman Saleji, deceased, against the appellants and the other respondents, claiming (inter alia) an account of the dealings and assets of the firm of Ebrahim Soleman and Co., in which his deceased father had been a partner. The partnership had been dissolved by arrangement between the partners on and from July 1, 1907, and the suit was commenced in June, 1908. On August 30, 1909, the trial judge, Fletcher J., declared that the partnership was dissolved and " ordered and decreed " that the matter be referred to the assistant referee of the Court, (1.) to inquire who were the partners who were entitled to share in the assets and goodwill, and (2.) to take an account of the dealings of the parties with the assets of the partnership business. This " order and decree" was not appealed from, and an inquiry accordingly took place. The report of the assistant referee showed, inter alia, that the appellants were retaining in their hands considerable sums forming part of the assets of the partnership, and had used them in continuing the business for their own benefit. The learned judge dismissed certain exceptions to the report filed by the appellants and made a decree that they should bring into Court the amounts for which they were severally found liable to the partnership with interest at 6 per cent, per annum from July 1, 1907, the date of the dissolution. The appellants appealed to the High Court in its appellate jurisdiction, contending, inter alia, that the decree or order of Fletcher J. of August 30, 1909, was wrongly made, in so far as it referred to the assistant referee the question as to who were the partners, and further that they should not have been ordered to pay interest. The High Court, by its judgment delivered on September 1, 1913, slightly reduced the amount payable by the appellants by way of principal, but in other respects affirmed the decree. The High Court, by its judgment delivered on September 1, 1913, slightly reduced the amount payable by the appellants by way of principal, but in other respects affirmed the decree. The learned judges held that the appellants, not having appealed against the decree or order of August 30, 1909, were precluded from disputing its correctness. Sir R. Finlay, K.C., Dunne, and B. N. Bose, for the appellants. The trial judge had no jurisdiction to refer to the assistant referee the question as to who were the partners entitled to the assets and goodwill of the firm. Under the Code of Civil Procedure, 1908, Order xxv r. 15, it was only the taking of the accounts which could be referred. So far as the question as to who were the partners was referred the adjudication of August 30,] 909, was not a " preliminary decree " within s. 97 of the Code of Civil Procedure, 1908, since it was not a " decree " within the definition in s. 2, sub-s. 2, of that Code; there was no controversy as to the firm being dissolved. It was an order from which there was no right of appeal and which could only be questioned upon appeal from the final decree. [Khadem Hossein v. Emdad Hossein (( 1901) I. L. R. 29 Calc. 758.) and Code of Civil Procedure, 1908, s. 104, sub-s. 1 (i.), were referred to.] The appellants should not have been ordered to pay interest. Interest was not claimed by the plaint and the facts did not establish any case of fraud. [Interest Act (XXXII. of 1839), s. 1 ; 3 & 4 Will. 4, c. 42, ss. 28 and 29; Bullen and Leake, 2nd ed., pp. 51 and 52; London, Chatham and Dover Up. Co. v. South Eastern Ry. Co. ([ 1893] A. C. 409.); and Johnson v. Rex ([ 1904] A. C. 817.) were referred to.] LORD DUNEDIN. Their Lordships are of opinion that the appellants are precluded by s. 97 of the Code of Civil Procedure, 1908, from disputing the correctness of the decree of August 30 1899 ; the reasons will be given later. Upjohn, K.C., Cozens-Hardy, K.C., and Lowndes, for the respondents. Their Lordships are of opinion that the appellants are precluded by s. 97 of the Code of Civil Procedure, 1908, from disputing the correctness of the decree of August 30 1899 ; the reasons will be given later. Upjohn, K.C., Cozens-Hardy, K.C., and Lowndes, for the respondents. It is well established by decisions in the Court of Chancery that when after a dissolution a partner retains assets in his hands and trades with them the other partners have an election either to take the profits so made as partnership assets or to have the retained assets paid to the partnership with interest Clements v. 11 all (( 1858) 2 De G. & J. 173.) ; Yates v. Fenn (( 1880) 13 Ch. D. 839.); Lindley on Partnership, 8th ed., pp. 677 et seq. This right exists independently of fraud and of the common law and statutory liability. It is immaterial that interest was not claimed in the pleadings Burland v. Earle. [ 1905] A. C. 590, Sir R. Finlay, K.C., replied. The judgment of their Lordships was delivered by LORD SUMNER. This was an action to have partnership accounts taken, and for that purpose to have various matters decided by the Court. Three questions only were raised before their Lordships on the present appeal. The circumstances raising the first question were as follows. The membership of the firm was in dispute. Certain persons were alleged, on one side, to have been partners, and, on the other, to have been only employees remunerated by a share of annual profits. The suit was begun on June 30, 1908, and on August 30, 1909, the trial judge, Fletcher J., by his formal adjudication (to use a neutral term) " declared " that the partnership in question was dissolved as from July 1, 1907, and then " ordered and decreed " that—" It is referred to the assistant referee of this Court to take the following account and to make the following inquiries, that is to say —(1.) To inquire who were the partners who were entitled to share in the assets and goodwill of the said partnership business ; (2.) to take an account of the dealings of the parties with the assets of the said partnership business"; and, further, certain other matters not now material. This adjudication was immediately appealable but was not appealed. This adjudication was immediately appealable but was not appealed. The assistant referee duly held the inquiries directed, and all matters were gone into at a great expenditure of time and money. His report on inquiry No. 1 was adverse to the appellants, and being excepted to by them was confirmed by Fletcher J. The appellants then, by memorandum of appeal dated May 23, 1912, raised the question whether inquiry No. 1 was rightly included in the adjudication dated August 80, 1909, or whether it was not one which should have been made by the learned judge himself. This at once and for the first time raised the question, which is the first and chief issue in the present appeal, whether the above-mentioned determination of Fletcher J. was a " decree " or an " order " within the meaning of those terms in the Code of Civil Procedure (Act V. of 1908). If it was a decree it was a preliminary decree within s. 97, and any appeal was incompetent and barred thereby; if it was an order it was appealable still. Their Lordships would unfeignedly deplore a state of procedure which enabled the appellants to take their chance of success before the assistant referee at such a cost in time and money and then, after they had lost the day, to contend that the matter never should have gone before him at all; yet it must be so if such be the meaning of the Code. The High Court, while thinking that the inquiry in dispute should not have been directed, decided at the same time that the adjudication of Fletcher J., which included this direction, was itself a decree, and therefore being a preliminary decree could not under s. 97 of the Code be questioned on the final appeal. Their Lordships are in accord with the learned judges of the High Court. The adjudication itself began by declaring that the partnership was dissolved as from a certain date, and thus in limine settled rights between the parties. This declaration was the foundation for all subsequent accounts and proceedings, which were merely incidental thereto and consequential thereon. Their Lordships are in accord with the learned judges of the High Court. The adjudication itself began by declaring that the partnership was dissolved as from a certain date, and thus in limine settled rights between the parties. This declaration was the foundation for all subsequent accounts and proceedings, which were merely incidental thereto and consequential thereon. It matters not whether the instrument of partnership fixed the dissolution at a date which had passed before the suit began, or whether the parties had agreed to a dissolution or agreed in submitting to a dissolution by the Court, or whether the Court decreed a dissolution for cause shown before it after a litis contestatio. The declaration when so made was what the Courts adjudication and indeed the appellants own case call it, a decree. The Code makes no provision for something which is neither a decree nor an order, nor for anything which is both, neither does it provide that one adjudication by the Court can be resolved into divers elements, some of which are decrees and some orders. This was in substance a decree it did not cease to be such because a subordinate part of it, if correctly made, might have been made separately as an order. It conclusively determined the rights of the parties in regard to certain, and those essential, matters involved in the suit, and the expression " matters in controversy " in s. 2, sub-s. 2 (the definition of " decree "), cannot, in their Lordships opinion, be pressed so as to exclude matters which, though as it happened they were common ground, must have been actually decided, if any question had arisen, and were the foundation of the whole determination. The Code has got rid of such doubts as were debated in Khadem Hossein v. Emdad Hossein. (I.L.R. 29 Calc. 758.) Accordingly s. 97 of the Code applies; the appellants took their objection too late and the High Court rightly decided against them. The residue of the case may be shortly disposed of. The appellants were ordered to bring certain money into Court and to pay interest as from a certain date. The contention on the former point, namely, that the amount was excessive, was not raised below at all and but faintly before their Lordships. The residue of the case may be shortly disposed of. The appellants were ordered to bring certain money into Court and to pay interest as from a certain date. The contention on the former point, namely, that the amount was excessive, was not raised below at all and but faintly before their Lordships. In any case the amount ordered to be brought into Court was a matter of discretion, and that discretion does not appear to have been exercised on any wrong principle. No more need be said as to this. The other point is equally short. It is well settled that in certain cases, when on the dissolution of a firm one of the partners retains assets of the firm in his hands without any settlement of accounts and applies them in continuing the business for his own benefit, he may be ordered to account for these assets with interest thereon, and this apart from fraud or misconduct in the nature of fraud. The report of the assistant referee disclosed conduct of this sort on the appellants part falling within the decided cases, even if it did not amount to fraud, as probably the referee meant to find that it did. Both Courts below adopted this report, and therefore there are concurrent findings of fact against the appellants and no question of law is raised at all. Their Lordships will humbly advise His Majesty that this appeal be dismissed with costs.