Judgment :- 1. The question which arises for consideration at present is whether the appeal is maintainable. 2. The appellant filed the suit O.S. 83 of 1982 on the file of the Sub-Court, Dindigul, for a declaration that the total amount due to the plaintiff is Rs. 61,66,209-57 and for passing a preliminary mortgage decree for the said amount against the defendants. The case set out in the plaint is as follow: Defendants 9 and 10 are brothers, carrying on business under the name and style ‘Puthur Vava Rowther’ in hides and skins. In about 1973 credit facility by way of bill limit was given to an extent of Rs. 10, 00,000. Defendants 4 and 9 and the mother of the 9th defendant created mortgages by deposit of title deeds on 26-3-1973 in respect of items 3, 4, 5 and 7. The credit facilities were enhanced to a limit of Rs. 25,00,000 in 1975. Defendants 9 and 10 brought into existence the first defendant firm with defendants 2 to 4 as partners. At the request of defendants 1 to 4, 9 and 10 credit facilities were extended to the first defendant firm. The fifth defendant is also a firm in which defendants 6 to 8 are partners. The 9th defendant has been managing and carrying on the business of both the firms holding a general power of attorney from defendants 2 to 4 with a power to borrow from bank and execute necessary documents. The third defendant is the wife of the 10th defendant while the fourth defendant is the wife of the 9th defendant. The second defendant is the daughter and defendants 6, 7 and 12 are the sons of the 9th defendant. The 11th defendant is the wife of the 6th defendant. Defendants 13 and 14 are sisters of defendants 9 and 10. Defendants 15 and 16 are the minor sons of the 9th defendant. Thus defendants 9 and 10 have been conducting business in the names of close relatives. The 17th defendant is a subsequent encumbrancer in respect of item 4 of A schedule. Apart from the equitable mortgage of the year 1973, other documents were executed in favour of the plaintiff bank by 9th defendant on 3-7-1977. There were agreements against hypothecation of movables, book debts and other assets for Rs. 24,00,000 and ancillary agreements besides pledge of machinery. Apart from the equitable mortgage of the year 1973, other documents were executed in favour of the plaintiff bank by 9th defendant on 3-7-1977. There were agreements against hypothecation of movables, book debts and other assets for Rs. 24,00,000 and ancillary agreements besides pledge of machinery. The limits of facilities were extended to Rs. 47,00,000. The 10th defendant deposited title deeds relating to item No. 6 with intent to create a security. The first defendant was availing of the credit facilities from the Dindigul branch of plaintiff bank. In about June 1979, the 5th defendant approached the plaintiff bank for credit facilities. The plaintiff bank agreed therefor with an over all limit of Rs. 35,00,000 imposing certain conditions for return of the loan. A general agreement in connection with the facilities granted by the bank was executed by defendants 5 to 8 for Rs. 35,00,000 on 28-6 1979 and ancillary agreements were also executed on the same day. The 9th defendant deposited title deeds relating to items 4 and 5 for himself and as power of attorney agent of the heirs of his mother, defendants 10, 13 & 14 and created an equitable mortgage on 9-10-1979. Defendents 3, 4 and 10 created a mortgage by deposit of title deeds on 17-7-1980 in respect of items 1, 2, 6 and 7 of A schedule. The deeds relating to items 1, 3, 4, 5 and 7 already deposited by defendants 3, 4, 9 and 10 were agreed to be extended for the advances made and to be made to defendants 1 and 5 with drawing limits of Rs. 66,50,000. In about 1980, at the request of the 5th defendant, the plaintiff issued a bank guarantee towards sales-tax liabilities due from the fifth defendant to the Tamil Nadu State Government to the extent of Rs. 1,13,925. For due performance defendants 3, 4, 9 and 10 agreed to extend the equitable mortgage in respect of items 1 to 7. On 17-9-1981, defendants 3, 4, 9 and 10 extended the equitable mortgage for all indebtedness and liabilities in connection with the advances made by the plaintiff to defendants 1 and 5 withdrawing limits of Rs. 67,63,925. 1,13,925. For due performance defendants 3, 4, 9 and 10 agreed to extend the equitable mortgage in respect of items 1 to 7. On 17-9-1981, defendants 3, 4, 9 and 10 extended the equitable mortgage for all indebtedness and liabilities in connection with the advances made by the plaintiff to defendants 1 and 5 withdrawing limits of Rs. 67,63,925. The 11th defendant orally agreed to stand as guarantor for repayment of all the liabilities of defendants 1 to 10 and further agreed to mortgage by way of deposit of title deeds in respect of item 8 of A Schedule. Defendants 6 and 9 offered additional securities in October, 1981. Defendants 6, 9 and 11 deposited title deeds relating to items 9 and 8 as security for all the advances made and to be made. In spite of repeated demands, the defendants failed to regularise the accounts and continued to be in default violating the covenants, terms and conditions of the loan. Hence, the plaintiff issued a registered notice to defendants on 6-5-1982 calling upon them to pay and adjust their liabilities. The defendants failed to do so. With a view to screen the properties, the defendants have been making attempts to bring about sham and nominal transactions. The alleged lease in favour of the 12th defendant, who is none else than the son of the 9th defendant is not binding on the plaintiff. Hence, the suit has been filed for recovery of the amounts due. 3. The defendant contested to suit on several grounds. It is not necessary to set out the pleas raised by the defendants. A perusal of the issues framed by the trial Court will give an idea of the defences raised. 4. The trial court framed the following issues and additional issues for trial :— 1. Whether the amount due on bills to the tune of Rs. 2,37,815,29 shown as (d) in the particulars of valuation in the plaint has been paid as alleged by the fourth defendant? 2. Whether the suit is bad for misjoinder of cause of action? 3. Whether the suit is bad for non-joinder of necessary parties and misjoinder of unnecessary parties? 4. Whether the alleged lease in favour of the 12th defendant is true and valid in respect of item No. 7? 5. Whether the 12th defendant is not a necessary party to the suit? 6. 3. Whether the suit is bad for non-joinder of necessary parties and misjoinder of unnecessary parties? 4. Whether the alleged lease in favour of the 12th defendant is true and valid in respect of item No. 7? 5. Whether the 12th defendant is not a necessary party to the suit? 6. Whether the defendants are entitled to marshalling the securities? 7. Whether the defendants are entitled to pay only simple interest as alleged in the written statement? 8. Whether the 8th defendant is not liable to pay any amount to the plaintiff as alleged in his written statement? 9. Whether the defendants 3 and 10 are not liable to pay the suit amount as alleged in the written statement? 10. Whether the 3rd defendant has created anyequitable mortgage over items 2, 3 and 4 of A Schedule as alleged in the written statement? 11. Whether the dealings done by the 9th defendant on behalf of the 3rd defendant are not bindingon the 3rd defendant as alleged in the written statement? 12. Whether the 10th defendant is not a partner either in first defendant firm or 5th defendant him as alleged in the written statement? 13. Whether the 10th defendant has not created any equitable mortgage in favour of the plaintiff in respect of suit item No. 9 in A Schedule? 14. Whether the defendants 6, 9 and 11 are not competent to and cannot create equitable mortgage over A Schedule item 9 as alleged in the written statement? 15. Whether the defendants 3 and 10 are not liable to pay the suit amount to the plaintiff as alleged in the written statement? 16. Whether the 11th defendant is not liable to pay the suit amount as alleged in the written statement? 17. Whether the suit is bad for non-joinder of minor Abdul Salam and minor Rafique who are said to have interest in the properties? 18. Whether the 12th defendant is an unnecessary party to the suit as alleged in the written statement? 19. Whether the 3rd defendant is a partner of first defendant firm? 20. Whether the plaintiff is entitled to a mortgage decree against the 3rd defendant and suit items 2, 3 and 4 of A Schedule? 21. Whether the plaintiff has to proceed against the 10th defendant only after exhausting all remedies against defendants 2, 4 and 6 to 9 who are principal debtors? 22. 20. Whether the plaintiff is entitled to a mortgage decree against the 3rd defendant and suit items 2, 3 and 4 of A Schedule? 21. Whether the plaintiff has to proceed against the 10th defendant only after exhausting all remedies against defendants 2, 4 and 6 to 9 who are principal debtors? 22. To what relief is the plaintiff entitled? ADDITIONAL ISSUES: 1. Whether the mortgage in respect of item 4 in A schedule is not a valid one as contended by the 17th defendant? 2. Whether the mortgage created by 9th defendant is binding on the defendants 15 and 15? 5. Issue No. 1 was answered in the affirmative and against the plaintiff in view of the admission made by P.W.1 in his evidence. Issues 2, 3, 5 and 18 were found against the defendants. On issue No. 4, it was held that the alleged lease in favour of the 12th defendant is not true and valid, in respect of item No. 7. Issue No. 6 was answered in the negative and against the defendants. On issue No. 7 it was held that the defendants are entitled to pay only simple interest and at the rate of 12% per annum for the amounts due by the first defendant and 10 5% per annum for the amounts due by the fifth defendant. Issue Nos. 8 and 9 were answered against the defendants. On issue No. 10, it was found that the equitable mortgage created by the third defendant was in respect of item No. 2 only. Issue No. 11 was found against the defendants. Issue No. 12 was given up. Issue No 13 was answered against the plaintiff. Issues 14 and 15 were answered against the defendants. Issue No. 16 was answered in favour of the 11th defendant. Issue No. 17 was held to be unnecessary as the minors rnentioned therein were impleaded as parties during the pendency of the suit. Issue 19 was answered against the third defendant. Under issue No. 20, it was held that the plaintiff was entitled to a mortgage decree only in respect of suit item No. 2. Under issue No. 21 it was held that the liability of the defendants was joint and several Additional Issues 1 and 2 were answered against the plaintiff. On the basis of the above findings, Issue No. 22 was answered as follows :— “72. Under issue No. 21 it was held that the liability of the defendants was joint and several Additional Issues 1 and 2 were answered against the plaintiff. On the basis of the above findings, Issue No. 22 was answered as follows :— “72. ISSUE No. 22 :—The defendants have prayed for permission to pay the amount that would be decreed in monthly instalments. This request cannot be considered without the consent of the plaintiff. That apart there is no justification to permit the defendants to pay the amount in monthly instalments especially when the amounts due by the defendants is very huge and is due since a ‘long time. In all other respects, the following directions are given for the purpose of passing a preliminary decree. 73. In the result, (1) the Plaintiff is directed to furnish the statement of principal and interest calculated at 12% p.a. simple interest for the debts due by the first defendant in respect of Cash Credit Mundy type. (2) The plaintiff is directed to furnish the statement of principal and interest calculated at 10.5% p.a. simple interest for the debts due by the 5th defendant in respect of Cash Credit lock and key and Cash Credit Mundy Type Accounts. (3) The plaintiff is entitled to claim simple interest at the same rate mentioned in Clause Nos. 1 and 2 on the principal amount (to be ascertained) from the date of plaint till reslisation. (4) The plaintiff is entitled to a decree against the defendants 1 to 10 personally and against the security and to proceed against the assets of the defendants 13 and 14 also. (5) the plaintiff is directed to give credit to a sum of Rs. 5,00,000 in the name of 4th defendant on behalf of the first defendant firm as on the date of payment of the said amount. (6) the plaintiff is also directed to give credit to another sum of Rs. 110,000 available with the plaintiff on inland letter of credit account and Rs. 11,000 towards the surplus of sales tax guarantee amount. (7) The plaintiff is not entitled to any decree against the defendants 11, 12 and 15 to 17. (8) The plaintiff shall proceed against the properties in itemwise as described in the plaint. However, the plaintiff is not entitled to proceed against the 8th item and 2/3rd share of 9th item. 11,000 towards the surplus of sales tax guarantee amount. (7) The plaintiff is not entitled to any decree against the defendants 11, 12 and 15 to 17. (8) The plaintiff shall proceed against the properties in itemwise as described in the plaint. However, the plaintiff is not entitled to proceed against the 8th item and 2/3rd share of 9th item. (9) The defendants are not entitled for equitable apportionment of their liability to the plaintiff in this suit, but they are at liberty to work out their remedies in a separate proceedings. (10) The plaintiff is directed to comply with the directions given in clauses 1 and 2 within a period of three months. On such compliance a preliminary decree will be passed incorporating all the relevant clauses mentioned herein and also the reliefs prayed for in the suit; and (11) orders regarding costs will be passed at the time of passing the preliminary decree.” 6. Without complying with the direction given by the trial Judge to furnish the statement of principal and interest calculated at 12% per annum and 10.5% per annum respectively, the plaintiff applied for copies of judgment and decree. The plaintiff filed two copy applications C.A. Nos. 1736 and 1737. The former was for copies of decree and judgment for the purpose of appeal to High Court, Madras and the latter was for copy of judgment for the purpose of revision. Both the applications were filed on 28-4-1986. According to the facts supplied by learned counsel for the respondents, the copy application No. 1736 was returned on 16-6-1986 with a direction to the plaintiff to comply with the directions contained in the judgment. The application was represented on 19-6-1986 with the endorsement that a decree could be drafted by incorporating the findings contained in the judgment. The application was returned again on 26-6-1986 pointing out that no decree could be drafted since no preliminary decree was passed. 7. The other copy application viz., C.A. No. 1737 was complied with in the meanwhileand the certified copy of the judgment wasmade ready on 27-6-1986. The appellant tookdelivery of the same on 30-6-1986 and filedC R.P. No. 2740 of 1986 in this court on30-7-1986. The registrv of this court returnedthe papers on 14-8-1986 calling upon the petitioner to state how the C.R.P. was maintainable. The appellant tookdelivery of the same on 30-6-1986 and filedC R.P. No. 2740 of 1986 in this court on30-7-1986. The registrv of this court returnedthe papers on 14-8-1986 calling upon the petitioner to state how the C.R.P. was maintainable. The petitioner was called upon to file acertified copy of the decree in the suit., Thepapers were represented on 22-8-1986 withthe following endorsement made by learnedcounsel for the petitioner: “The L.Ct. has recorded its findings and no decree has been passed yet. Vide 73(1) of the judgment. There can be no appeal in the absence of a decree and the C.R.P. filed against the findings is in order.” 8. It appears that the registry accepted the endorsement made by learned counsel and took on, file the civil revision petition which was later admitted. The appellant represented the copy application No. 1736 on 6-1 -1987 requesting the court to pass a decree incorporating the findings on the ground that there was a final adjudication of all the issues. It appears that the matter was posted before court for arguments and ultimately the court directed the drafting of a decree by incorporating the findings. A certified copy of the decree was delivered to the party on 22-4-1987. On the same day, the printed copies of the judgment were also delivered. The decree drafted by the trial court contains the cause title and the preamble in the usual form. The relevant portion of it reads, “having stood over for consideration till this day, this court doth pass the following (1) Findings :” Then entire paragraph 73 of the judgment is reproduced. Thereafter, the schedule of properties is found. 9. It is against the said decree, this appeal has been filed on 17-7-1987. The Memo of valuation is as follows :— MEMO OF VALUATION: “The value of the suit is Rs. 61,66,209.57. The appeal is filed against some of the findings recorded by the lower court and the preliminary decree is yet to be passed. The appeal is therefore, incapable of valuation and a fixed court fee of Rs. 200 is paid thereon.” 10. The appeal is directed against the findings rendered against the plaintiff. It is clear from the endorsement made by learned counsel on the civil revision petition and the memo of valuation at the end of the memorandum of appeal that there is no decree as such passed by the trial court. 200 is paid thereon.” 10. The appeal is directed against the findings rendered against the plaintiff. It is clear from the endorsement made by learned counsel on the civil revision petition and the memo of valuation at the end of the memorandum of appeal that there is no decree as such passed by the trial court. When some of the civil miscellaneous petir tions, filed by the parties came up for disposal before me, I directed learned counsel for the appellant to argue on the question of maintainability of the appeal. Consequently, learned counsel on both sides argued the; question elaborately. According to the appellants learned counsel, there is a final adjudication of the rights of parties by the trial court conclusively determining the issues in controversy in the suit and, therefore, the appeal is maintainable. On the other hand, the contention of learned counsel for the respondents is that an appeal is available only against a decree and there is no decree passed by the trial court in these proceedings and the appeal is not, therefore, sustainable. 11. There can be no dispute that an appeal will lie only against a decree. S. 96, Code of Civil Procedure provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. A ‘decree’ is define by S. 2(2) of the Code of Civil Procedure, as “the formal expression of an 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” Even according to the definition, it may be either preliminary or final. Explanation to S 2(2), Code of Civil Procedure, is in the following terms: — “A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” The following are the essential elements in order that a decision of a Court may be ‘decree’. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” The following are the essential elements in order that a decision of a Court may be ‘decree’. (1) There must be an adjudication; (2) The adjudication must have been given in a suit; (3) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit; (4) Such determination must be a conclusive determination; (5) There must be a formal expression of the adjudication. 12. Under S. 33, Code of Civil Procedure, a decree shall follow a judgment in the suit. The judgment has been defined by S 2 (9), Code of Civil Procedure, as ‘the statement given by the judge on the grounds of a decree or order’. Under O. 20, R. 6, Code of Civil Procedure, the decree shall agree with the judgment and it shall contain the number of the suit, the names and description of the parties, their registered addresses and particulars of the claim and it shall specify clearly the relief granted or other determination of the suit. It is also provided that the decree shall state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. According to R. 7 of O. 20, Code of Civil Procedure, “the decree shall bear date the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.” 13. A reading of the above provisions of the Code of Civil Procedure shows that judgment and decree should always go together as if they form one unit. When the court delivers a judgment, it shall be followed by a decree immediately, which has to be drafted according to the procedure prescribed. The definition of ‘judgment’ that it is a statement of the grounds of a decree indicates that when the court delivers a judgment, it is with a view to pass a decree in term thereof. Four of the five essential elements of a decree stated above, should be found in the judgment. It is only the 5th element viz, “a formal expression of the adjudication which distinguishes a decree from the judgment. Four of the five essential elements of a decree stated above, should be found in the judgment. It is only the 5th element viz, “a formal expression of the adjudication which distinguishes a decree from the judgment. If at the time of delivering the judgment, the court decides that the formal expression of the adjudication cannot follow the judgment immediately for want of certain particulars and directs the parties to furnish such particulars in order to enable the court to make a formal expression of the adjudication, then the process of conclusive determination of the rights of parties is not complete. In other words, the court while delivering the judgment finds that certain particulars are necessary for the purpose of drafting a decree in accordance with that judgment and directs the parties to provide such particulars, there is no intention on the part of the court to pass a decree at that stage. Such a judgment, though completed in form, tantamounts in law to a judgment with blanks to be filled up after the necessary particulars are furnished by the parties. It is only a step taken towards the passing of conclusive judgment and decree. It is more or less an order interlocutory or preparatory to a decree which will be passed by the Court after the required particulars are supplied. Such an order cannot be treated as a ‘decree’ within the meaning of S. 2(2) Code of Civil Procedure. 14. An analogous situation arose in A.L.A.R. Arunachalam Chettiar through the Authorised Agent Guruswami Ayyar v. Ry. Pratap Singh Rajah Sahib 1 In that case, a preliminary decree was passed awarding 3/4th share to the defendants. Appeals were preferred to this Court and during their pendency, a stay petition was filed by one of the defendants. In the order made thereon, some of the defendants, referred to as Mangalavilas defendants in the judgment, were allowed to withdraw monies deposited to the credit of the Estate, viz, Tanjore Palace Estate, in the lower court upto the limit of the shares due to them under the preliminary decree, but subject to security being given for the return of those monies if this court diminished their shares ultimately. Various sums of money were then withdrawn under those conditions. This court in its decree reduced the share of Mangalavilas defendants to 3/7th. Various sums of money were then withdrawn under those conditions. This court in its decree reduced the share of Mangalavilas defendants to 3/7th. As they had drawn monies in excess of their share, they had to refund. After the decree of this court, the suit went back to the district court for final decree proceedings. On an application made by one of the successful appellants in this court for restitution of the amounts overdrawn by Mangalavilas defendants, the district court passed an order on 25-11-1925 that the shares allotted to the Mangalavilas defendants would be made subject to a charge for the overdrawn amounts. The said charge was embodied in the final decree passed by the district court on 27-2-1926, i.e., about three months later. The order of the district judge dated 25-11-1925 was challenged in a civil miscellaneous appeal. A civil revision petition was also filed as a matter of caution. A preliminary objection as to the ma intainability of the appeal was raised and it was upheld by the bench. The following passage in the judgment, dealing with the preliminary objection, is relevant and useful:— “As to the preliminary objection that no appeal lies at all, we are inclined to hold that it is a good objection, although the appellant has cause to complain about the manner in which the lower court phrased its order, The order has been unnecessarily drawn up in a decretal form as well as in a judgment form. In the judgment form the district and judge has recorded it in the following terms: Relief (9) has been granted in the order just passed in O.S. No. 3 of 1919, the main suit. In the decretal form this has been recorded as follows: “That relief (9) be granted (vide order passed in O.S. No. 3 of 1919”) A reference to the order passed in O.S. No. 3 of 1919 show that the order was: When the restitution amounts payable to defendants 1 and 2 are determined, the final decree will provide for a charge on the shares of defendants 8 to 11, 25, 26, 28 and 29, in immovables under the heal decree (evidently interim final decree), dated 16th September, 1925, enforceable in execution in addition to their personal liability; and the charge will bind the 31st defendant. It is clear from this that the order was not an order independant of the final decree but that the order was to be embodied in the final decree, and, therefore, not until the final decree was drawn up did it come into force This was is accordance with what the lower court had power to do and was entitled in its discretion to do. The office in drawing up the decretal form of the order wrongly phrased it as if it were an order in independent of the final decree. In the view we take, any attack on this order ought to be put forward only by way of an appeal against the final decree and the 31st defendant has not put in any such appeal.” 15. The principle accepted by the bench was that the order passed by the court was not independent of the final decree and it was intended to be embodied in the final decree. On the facts of the present case, it is seen that the learned subordinate judge expressly stated that on the plaintiff furnishing the statements required under clauses 1 and 2 of paragraph 73 of the judgment, a preliminary decree will be passed incorporating all the relevant clauses mentioned in that paragraph and also the reliefs prayed for in the suit. There is no ambiguity in what the learned subordinate judge intended to do. He never intended the judgment dated 25th April, 1985 to be independent of the decree which should be passed after the plaintiff filed the statement of principal and interest as directed by the judgment. The learned judge wanted to make the formal expression of the adjudication only after the details required to be furnished by the plaintiff were supplied to the court. Though in form he signed the judgment and completed the same, he considered it to be incomplete in law and decided to complete the same after the plaintiff filed the required statement. The ruling of the Division Bench in A.L.A. R. Arunachalam Chettiar through the authorised agent Guruswami Aiyar v. Ry. Pratapasimha Rajah Sahib 1 will apply to the facts of the present case. 16. The ruling of the Division Bench in A.L.A. R. Arunachalam Chettiar through the authorised agent Guruswami Aiyar v. Ry. Pratapasimha Rajah Sahib 1 will apply to the facts of the present case. 16. It has been repeatedly held that the findings on issues do not constitute a decree and just because they are set out in a separate paper in the form of a decree and the same is labelled as a ‘decree’, that would not become a decree within the meaning of S. 2(2) of the Code of Civil Procedure, An order drawn up in the form of a decree will not become a decree and become appealable. In Ranthawama Alias Alagianayakathanmal and others v. P.R.M.K. Mohammad Abdul Rahunan Marakayar 1 it was held that no appeal lies under the Estates Land Act against the order of the district court confirming the order of the collector for payment of rent in kind,. While holding that a light of appeal is a statutory right and cannot be inferred by implication, Abdul Rahman, J. pointed out that an order would not become ‘decree’ merely because it is drafted in the form of a decree. The observations made by the learned judge in that connection are very instructive and they read thus :— “The code makes a clear distinction between decrees and appealable orders and it is impossible to forget that distinction In deciding this question. My attention was drawn to the fact that the decisions of the district court were final so far as that court was concerned and that they were embodied in the form of decrees. But I do not feel impressed by these facts An order does not become a decree merely because it happens to be an order which is final so far as the court passing it is concerned. As to the form in which these orders were embodied, a practice seems to have grown up in this presidency to embody every order or judgment passed by a Court in the form of a decree. In cases of orders, these formal expressions have come to be known by the style of decretal orders. As to the form in which these orders were embodied, a practice seems to have grown up in this presidency to embody every order or judgment passed by a Court in the form of a decree. In cases of orders, these formal expressions have come to be known by the style of decretal orders. This practice owed its growth probably to the difficulty experienced by the lower Courts in discriminating between judgments and orders and since no appeal is competent in case of judgments unless they are formally drawn up and embodied in decrees, it was probably considered safer to embody both judgments and order in that manner This would not; however, confer a right of appeal where none exists or convert what was really an order into a decree.” 17. In M. Chauli Alias Subhadha Devi v. Mt.Meghooand others 2 , a full bench of the Allahabad High Court had to discuss this aspect of the matter under different circumstances and held that a finding in itself is not a decree. In that case, an appeal was heard by a division bench which gave certain findings on some of the issues and called for findings on three other issues from the trial court. After the trial court remitted the findings on the three issues the matter went before a different bench. A question arose whether the bench was bound by the findings give n on the earlier occasion on the issues which were not remitted to the trial Court. The full bench answered the question in the negative. The main plank of the reasoning was that the findings rendered on the earlier occasion did not constitute a decree so as to be binding on the bench which heard the case later While discussing that aspect of the mailer, the full bench observed thus :— “There can be no question of a preliminary decree in the case with which we are dealing. A decree is a formal document which must be drawn up in accordance with some decision of a court. There was no question of drawing up any formal document in the case with which we are dealing. A finding in itself is not a decree.” 18. A decree is a formal document which must be drawn up in accordance with some decision of a court. There was no question of drawing up any formal document in the case with which we are dealing. A finding in itself is not a decree.” 18. The principle was expressed more forcibly in Amod Kumar Verma v. Hari Prasad Burman and others 3 The appeal before the bench was from an order of a civil judge, Banaras, refusing to set aside an award of arbitrators and passing a decree on its basis in a suit. The appeal was filed even before the decree was drafted against the order refusing to set aside the award One of the contentions raised before the bench related to the maintainability of the appeal. While repelling that contention, the bench expressed its views thus : “(16) There is no judgment pronounced by the trial Court. It has only passed an order refusing to set aside the award and at once passed a decree. The decree is null and void in the absence of a judgment. After refusing to set aside the award the trial court ought to have pronounced a judgment on the merits of the disputes between the parties as settled by the award (17) Though the trial court has ordered a decree to be passed no decree has been prepared yet. What purports to be a decree is nothing but a formal order; it reproduces the operative words of the order of the trial court. It is in the form of a decree but that would not convert it into a decree if according to its contents it was not a decree. I do not understand how it can be treated as a decree when it itself directs a decree to be prepared Since a decree is to be prepared in compliance with it, it itself cannot be a decree. Since there is no decree, the bar imposed by S. 17 on an appeal does not operate. Moreover S. 17 bars an appeal from a decree except on the ground of its being in excess of the award) only if the decree is passed in a proceeding governed by Ss. 14, 15, 16 and 17. Since there is no decree, the bar imposed by S. 17 on an appeal does not operate. Moreover S. 17 bars an appeal from a decree except on the ground of its being in excess of the award) only if the decree is passed in a proceeding governed by Ss. 14, 15, 16 and 17. Surely if some court passed a decree on the basis of an award without having been filed properly before it, it can not be contended that no appeal would lie from it except on the ground that it is in excess of the award. It is true that there is no right of an appeal from any order except an order setting aside or refusing to set aside the award. Here the appeal is from an order refusing to set aside an award, but when disposing of the appeal it is open to this court, to set aside any consequential or incidential order passed by the trial court. Even if the order refusing to set aside the award is maintained on appeal, any, consequential or incidental order passed by it without jurisdiction or wrongly can be set aside.” (Underlining is mine.) In this case, the learned subordinate judge has stated that a preliminary decree will be passed incorporating all the relevant clauses and the reliefs prayed for in the suit after the plaintiff compiles with the directions contained in clauses 1 and 2 of paragraph 73. When that is so, the so called decree passed by the trial court at the instance of the plaintiff merely incorporating paragraph 73 of the judgment is not a ‘decree’ as defined by S. 2(2), Code of Civil Procedure. As such it is not appealabl e under S. 96, Code of Civil Procedure. 19. The matter can be approached in another way too. Under O. 20, R. 6, Code of Civil Procedure, the decree shall agree with the judgment and specify clearly the relief granted or other determination of the suit. When the judge has deliberately left the relief column of decree blank in order to be filled after the particulars are furnished by the plaintiff, neither the judgment nor the decree can be said to be complete. Hence, the essential requirements of S. 2(2), Code of Civil Procedure are not satisfied. 20. When the judge has deliberately left the relief column of decree blank in order to be filled after the particulars are furnished by the plaintiff, neither the judgment nor the decree can be said to be complete. Hence, the essential requirements of S. 2(2), Code of Civil Procedure are not satisfied. 20. Learned counsel for the appellant placed reliance on the provisions of R. 6-A of O. 20, Code of Civil Procedure and contended that an appeal is maintainable against the judgment, when a decree is not drawn up by the trial court According to learned counsel, R. 6A is introduced only to enable the parties to file appeals in situations as in the present case. I do not agree with this contention, R. 6-A of O. 20, Code of Civil Procedure, is in the following terms :— “6 A. Last paragraph of judgment to indicate in pr ecise terms the reliefs granted :— (1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. I do not agree with this contention, R. 6-A of O. 20, Code of Civil Procedure, is in the following terms :— “6 A. Last paragraph of judgment to indicate in pr ecise terms the reliefs granted :— (1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. (2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon;— (a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purpose of R. 1 of O. 51, be treated as the decree; and (b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy a that paragraph only without being returned to apply for a copy of the whole of the judgment, but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose; Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit.” The language of the rule makes it clear that it is applicable to cases where the court has intended to pass a decree and completed the judgment which could be followed immediately by a decree. Under clause (2) of the rule, the court is enjoined to make every endeavour to draw up the decree at least within 15 days from the date on which the judgment is pronounced. Under clause (2) of the rule, the court is enjoined to make every endeavour to draw up the decree at least within 15 days from the date on which the judgment is pronounced. If for some reason or other, the court is not able to draw up the decree within the time specified in the rule, and the party is desirous of taking up the matter to appellate court urgently, R. 6-A will come into play. The certificate issued cannot be treated as a ‘decree’ under S. 2(2), Code of Civil Procedure. The fiction introduced by the rule that the last paragraph of the judgment shall be deemed to be a decree is only for a limited purpose and for a limited period That rule cannot enable a person to file an appeal against a judgment, when the court itself indicated that the decree will not follow unless certain particulars are furnished by the plaintiff. If the plaintiff docs not choose to comply with the direction given by the trial court and fails to furnish the particulars, he cannot take advantage of R. 6-A of O. 20 of the Code of Civil Procedure. In fact, from the facts set out earlier, it is seen that the plaintiff did not invoke the provisions of O. 20, R. 6-A Code of Civil Procedure to his aid, In my view, the provisions of R. 6-A of O. 20, Code of Civil Procedure are not applicable to the present case. 21. It is next argued that the nomenclature used by the learned subordinate judge is not conclusive and that just because the learned subordinate judge has not called the decree as an interim preliminary decree, the right of appeal will not be lost to the plaintiff. While I agree with learned counsel that the nomenclature does not conclude the matter, I hold that in the present case, there is no decree as defined by S. 2(2), Code of Civil Procedure either in form or substance. The learned subordinate judge decided to pass a preliminary decree only after the plaintiff furnished the required particulars. 22. Learned counsel for the appellant cited a number of judgments in support of his arguments. The earliest case referred to by him is that of V. Adinarayana Chetty v. Kopparam Narasimha Chetty and another 1. The learned subordinate judge decided to pass a preliminary decree only after the plaintiff furnished the required particulars. 22. Learned counsel for the appellant cited a number of judgments in support of his arguments. The earliest case referred to by him is that of V. Adinarayana Chetty v. Kopparam Narasimha Chetty and another 1. In that case, in pursuance of a compromise decree passed in a suit under S. 92, Code of Civil Procedure, a commissioner was appointed to take an account and the court after hearing the objections of the parties finally passed an order declaring that the new trustees of the temple were entitled to recover a certain sum of money from the defendants. The amounts were also specified by the order. A revision petition was filed against the said order by the aggrieved first defendant. A preliminary objection was taken that no civil revision petition would lie as the order of the learned subordinate judge was a decree from which there was an appeal. The preliminary objection was upheld by the division bench, which held that the mere fact that the judgment of the subordinate judge was headed ‘Order’ did not make it any the less a decree nor the fact that the office chose to endorse upon the decree that it was a decretal order. The bench observed thus :— “It is just as if the learned subordinate judge had treated the matter as one where a preliminary decree had been passed. He ends up by stating— There will, therefore, be a declaration to the effect that there is no amount due by the temple to any of the defendants and that on the other hand, the 3rd defendant owes Rs. 197-2-3 and the 1st defendant Rs. 2,202-5-5 to it and a direction requiring the said defendants 1 and 3 to pay the temple (trustees on behalf of the temple) the sums respectively due by them as aforesaid with costs subject to this decree being liable to be executed only upon the payment of the adequate court-fee upon the amounts decreed. There was no mistake here and it is clear that the learned subordinate judge intended to finally dispose of the matter between the parties and that his order was to be a ‘decree’. On the lace of it, it was a decree and no one could possibly have been misled. There was no mistake here and it is clear that the learned subordinate judge intended to finally dispose of the matter between the parties and that his order was to be a ‘decree’. On the lace of it, it was a decree and no one could possibly have been misled. The mere fact that the learned subordinate judges judgment is headed ‘Order’ does not make his judgment any the less a judgment nor does the fact that the office chose to endorse upon the decree that it was a decretal order make any difference The test to be applied is what it was and it completely satisfies the definition of a ‘decree’ in the Civil Procedure Code. In my opinion paragraph 2 of the learned subordinate judges order is conclusive of the matter and there can be no ground whatever for saying that he purported to act under a non-appealable procedure.” 23. Learned counsel placed considerable reliance on the judgment of a division bench in Kasi Alias Alagappa Chettiar and others v. RM.A.RM. V. Ramanathan Chettiar Alias Srinivasan Chettiar 1. That case arose out of a suit for the taking of partnership accounts. A preliminary decree was passed declaring the proportionate shares of the parties in the partnership and directing certain accounts to be taken by a commissioner to be appointed for the purpose. Some issues were, however, reserved for consideration at the time of passing the final decree. A report was submitted by the commissioner appointed by the court and after hearing the parties, the court passed an order recording its finding on the said issues and also certain charges formulated by the respondents on the statement of accounts filed by the appellants. By the same order, the court directed the commissioner to take accounts afresh and submit a revised report in the light of the directions contained in the order. The respondents applied for certified copies of judgment and decree. While the printing charges were required to be deposited for the judgment, no stamp papers for a copy of the decree were called for. The respondents applied to the court for a copy of the decree and their application was returned with an endorsement that no decree was drawn up as only findings were given. While the printing charges were required to be deposited for the judgment, no stamp papers for a copy of the decree were called for. The respondents applied to the court for a copy of the decree and their application was returned with an endorsement that no decree was drawn up as only findings were given. Thereupon, the respondent applied to the court to draw up a decree in the suit, but the court ordered that there was no final disposal but only directions were given and that only a formal order would be drawn up. A formal order was drawn up and a copy thereof was furnished to the respondents. Against the said decision, the respondents filed an appeal which came before the bench. A contention was raised that the appeal was not maintainable as the decision of the court below was not a ‘decree’ within the meaning of S. 96, read with S. 2(2) of the Code of Civil Procedure. The bench, after considering the matter elaborately, held that the order passed by the court below was a ‘decree’ as defined by S. 2 (2), Code of Civil Procedure. It was laid down that where the court has adjudicated on the substantive rights of the parties with regard to the several matters in controversy in the suit and the determination of these matters is clearly intended to be final and conclusive so far as that court was concerned, the decision operates as a preliminary decree an d is appealable. It was observed that the mere fact that the court which passed the decree took the view that only findings and directions had been given and that no final disposal was made, will not affect the question of appealability and that the question whether the adjudication was a decree or not should be determined with reference to S2.(2) and not with reference to implications, true or supposed, arising from the general provisions relating to judgments and decrees or to disposals of suits. It was also observed that no considerations of policy as to the expeditious administration of justice nor the avoidance of expenses and delay could be imported into the determination of the question. It was also observed that no considerations of policy as to the expeditious administration of justice nor the avoidance of expenses and delay could be imported into the determination of the question. The bench held further that there was nothing in the Code which prohibited the court in a proper case from passing more than one preliminary decree and that it contemplated more than one preliminary decree and one final executable decree in a suit. 24. The bench had occasion to review a number of prior decisions and cull out the principles of law. They also referred to the case of Arunachalam Chettiar v. Pratapasimha Rajah Saheb 1 which I have cited earlier in this judgment, and distinguished the same. Referring to the judgment in that case, the bench observed that “it appeared that the order was intended to be embodied in the final decree which was passed soon after, but it was drawn up by the office in a decretal form ‘unnecessarily’, and a civil miscellaneous Appeal was preferred against the order”. According to the Bench, the case in Arunachalam Chetiiar v. Pratapasimha Rajah Saheb 1 turned on its special facts. 25. The test laid down by the bench is that if the court which passed the order intended it to be embodied in the decree to be passed soon after, the appeal would lie against the decree and not the order. If that test is applied to the facts of the present case, it will be seen that the learned subordinate judge intended the order passed by him to be embodied in the preliminary decree which is to be passed immediately after the particulars required by the court are furnished by the plaintiff. The judgment of the division bench in Kasi Alias Alagappa Chettiar v. RM.A.RM. V. Ramanathan Chettiar alias Srinivasan Chettiar 1, will not have application to the facts of this case. 26. The next judgment cited by learned counsel is that of the Bombay High Court in Parashuram v. Hirabai 2. The judgment of the division bench in Kasi Alias Alagappa Chettiar v. RM.A.RM. V. Ramanathan Chettiar alias Srinivasan Chettiar 1, will not have application to the facts of this case. 26. The next judgment cited by learned counsel is that of the Bombay High Court in Parashuram v. Hirabai 2. It was held in that if for a mistake committed by the court below a decree was not formally drawn up and the appellant was not able to produce a certified copy of the decree along with the memorandum of appeal, he should not be visited with the consequence of his appeal not being competent as the drawing up of a decree was only a formal affair and the omission had not affected the rights of the parties either way. In that case, the decree was not drawn up because of a mistake on the part of the court. In the present case, the decree is not drawn up because of the default committed by the plaintiff-appellant in furnishing the particulars required by the court. That decision has no bearing to the present case. 27. Learned counsel invited my attention to the ruling of the Supreme Court in Jagat Dhish v. Jawahar Lal 3 While holding that the requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in absence of the decree the filing of the appeal would be incomplete, defective and incompetent, the Supreme Court observed that appropriate orders will have to be passed having regard to the circumstances of each case. The law was stated thus: “If at the time when the appeal is preferred a decree has already been drawn up by the trial court and the appellant has not applied lor it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The law was stated thus: “If at the time when the appeal is preferred a decree has already been drawn up by the trial court and the appellant has not applied lor it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate court a decree in fact had not been drawn up by the trial court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. In the case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. In such a case it would be open to the High Court, and we apprehend it would be its duty, to direct the subordinate court to draw up the decree forthwith without any delay. On the other hand, if a decree had been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn the office of the appellate court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits. It is obvious that the complications in the present case have arisen as a result of two factors; the failure of the trial court to draw up the decree as required by the Code, and the failure of the office in the High Court to notice the defect and to take appropriate action at the initial stage before the appeal was placed for admission under O. 41, R. 11. It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under O. 41. R. 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. Therefore, in our opinion, the appellant is not justified in challenging the propriety or the validity of the order passed by the High Court because in the circumstances to which we have already adverted the said order is obviously fair and just. The High Court realised that it would be very unfair to penalise the party for the mistake committed by the trial court and its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.” It is needless to say that the judgment of the Supreme Court is not applicable to the facts of this case as the failure of the court below to draw up the decree is not on account of any fault on its part. 28. Learned counsel relied on the judgment of the Supreme Court in Phoolchand v. Gopal Lal 4. In that case, a preliminary decree was passed in a partition suit. Two of the parties died resulting in redistribution of the shares. There were disputes with regard to the shares which should be taken by the parties consequent to the death of the two persons referred to above and the court decided the same and redistributed the shares. However, the trial court did not prepare another formal preliminary decree on the basis of the redistribution of the shares. There were disputes with regard to the shares which should be taken by the parties consequent to the death of the two persons referred to above and the court decided the same and redistributed the shares. However, the trial court did not prepare another formal preliminary decree on the basis of the redistribution of the shares. There was an appeal against the order of (he trial court and no copy of the decree was filed along with the memorandum of appeal. When an objection was taken as to the maintainability of the appeal, the high court adjourned the matter and directed the appellant to move the trial Court to draw up a formal decree. The appellant moved the trial Court for amending the preliminary decree and the application was rejected. A preliminary objection was raised at the time of the hearing of the appeal in the high court that the appeal was not maintainable as no copy of the decree filed along with the memorandum. It was also contended that there could be no second preliminary decree and that the order of the trial court varying the shares in the preliminary decree could be challenged only in an appeal against the final decree. The high court repelled both the contentions and held that the order of the trial court varying the shares was a decree on the facts and circumstances of the case and an appeal could be filed against the same. The high court also held that the appellant could not file a copy of the decree of the trial court on account of the refusal of the trial court to frame a formal decree which would not take away the right of appeal. The Supreme Court upheld the view of the High Court on both the contentions. The Supreme Court approved of the decision of this Court in Kasi v. Ramanathan Chettiar 1 and that of the Bombay High Court in Parashuram v. Hirabai 2. The relevant portion of the Judgment of the Supreme Court is as follows: “We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, especially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would he liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, lor we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed” 29. It has to be noted that the Supreme Court has expressed the view that their observations in the judgment should be confined to partition suits. Hence, it is not possible for learned counsel for the appellant to invoke to his aid the said decision of the Supreme Court. 30. The principle that there could be a number of preliminary decrees and that the fact that no formal decree has been drawn up is no indication to show that it is not ‘decree’ within the meaning of S. 2 (2), Code of Civil Procedure, has been accepted by the Kerala High Court in Mayimu alias Bambathi Bibi v. Chariya Maliyammal Mayimu 3. The rule was stated by the learned judge thus:— “The test whether an order is one finally determining the rights of parties must depend upon the nature of the order and not whether a decree has been prepared or not” With respect I agree. From the nature of the order in the present case, it can be said without any hesitation that there is no final determination of the rights of the parties and that has been reserved by the learned Sub-ordinate judge to a later stage, i.e., after the plaintiff furnishes the necessary particulars. 31. In Umamaheshwar Cotton Ginning and Pressing Factory and others v. Rama Rao Shroff and others 1, cited by learned counsel for the appellant, it was held that when there is a determination of rights of parties, it is the duty of the court to formally draw up a decree and even if it is not drawn up, it is the duty of the party to point out such omission and request the court for drawing up the formal decree and that the omission will not make the decree non-appealable, as it is the substance and not the form that determines the appealability. A division bench of the same Court in M L. Manjappa and others v. Kalyani Pujarthy and others 2, held that in a suit for partition when the court makes final order allotting shares to respective parties, the order is a decree and appealable notwithstanding the fact that it is not engrossed on a non-judicial stamp paper. Neither of the aforesaid decisions will have a bearing in this case. 32. In State of Rajasthan and another v. Chander Singh 3, Lodha, J. held that an order holding an appeal to be not maintainable amounts to a decree, as it determines the right of the appellant to maintain the appeal and as such appealable. It was held by him that the fact that no decree was passed in pursuance of the said order made no difference. The said judgment has no applicability in this case. 33. In Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi 4, a suit for possession as well as arrears of rent was filed. The suit was held to be not maintainable in so far as it related to possession, and it was directed to be proceeded only with regard to the claim for arrears of rent. 33. In Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi 4, a suit for possession as well as arrears of rent was filed. The suit was held to be not maintainable in so far as it related to possession, and it was directed to be proceeded only with regard to the claim for arrears of rent. An appeal was filed against the said order. But, a certified copy of the decree of the court was not filed as the decree was not drawn up by the trial court. The plaintiff filed an application in the trial court to draw up a decree, but that was dismissed on the ground that the suit was not finally decided. The plaintiff filed a revision petition against the said order. The learned Judge who heard the revision petition held that the order of the trial Judge conclusively determined the rights of parties on the question of eviction and, therefore, it was a decree. Consequently, the learned Judge allowed the revision and directed the trial court to draw up a decree in pursuance of the judgment. That is also a case where the omission to draw up a decree was on account of the wrong understanding of the position in law by the trial court. There was no fault on the part of the party. That judgment will not have any application here. 34. Learned counsel for the appellant in anticipation of the arguments which would be advanced by learned counsel for the respondents, referred to the decision of the Supreme Court in Ganga Bai v. Vijay Kumar 5, and tried to distinguish the same. In that case, the Supreme Court held that no appeal can lie against a mere finding as the code does not provide for any such appeal. In that case, in a suit to enforce a mortgage of joint family property executed by the father manager, a preliminary decree for sale was passed only against the half share of the father in the mortgaged property and the suit was dismissed against the sons on the ground that the mortgage not being for legal necessity was not binding on their shares under the Hindu Law. The sons filed an appeal not against any part of the preliminary decree but only against the finding of the trial court that the partition between father and sons effected subsequent to the mortgage was a sham and colourable transaction. The Supreme Court held that the appeal filed by the sons was not maintainable in law as it was directed against a mere finding recorded by the trial court and that the High Court was in error in entertaining the appeal. It was further pointed out by the Supreme Court that as the matter regarding the partition between the father and the sons was not directly and substantially in issue in the mortgage suit and as the finding given by the trial court in the suit was unnecessary and had no impact on the decision of the suit, it could not operate as res judicata. Learned counsel for the appellant submits that the ruling of the Supreme Court would not apply to the facts of the presence case as the findings rendered by the learned subordinate judge cannot be said to be unnecessary findings. I agree with the said contention. But, that will have no effect on the maintainability of this appeal. 35. Learned counsel for the appellant contended that if the appellant had complied with the directions given by the trial court to furnish certain particulars and a decree had been passed thereafter, the appellant would not have been in a position to challenge the findings rendered by the learned judge. There is absolutely no substance in this contention. By furnishing the particulars required by the trial court, the appellant could only have enabled the court to complete the judgment and pass a decree. It would not have been a case which would have fallen under S. 97, Code of Civil Procedure. It is not as if the present judgment of the court below is a preliminary decree and the decree which is to be passed after the plaintiff furnished the particulars, is a final decree. The learned subordinate judge has made it clear that he would be passing a preliminary decree after the particulars were furnished. That will be the first decree which is to be passed in the suit. Hence, this argument has to be rejected. 36. Learned counsel for the respondents for his part cited a number of decisions. The learned subordinate judge has made it clear that he would be passing a preliminary decree after the particulars were furnished. That will be the first decree which is to be passed in the suit. Hence, this argument has to be rejected. 36. Learned counsel for the respondents for his part cited a number of decisions. The earliest of them is that of a division bench of the Bombay High Court in Rupchand Ganesh Shet Bhogilal Ratanchand 1, where it was held that there could be no appeal against a finding which did not conclusively determine the suit To a similar effect is the decision of the full bench of Nagpur High Court in Daliram Ganpatrao Bhoot v. Manohar Damodhar Bhoot 2, which comes next in chronology. The full bench held that unless a finding is of such a nature as to be sufficient for the decision of the suit and gives formal expression to its adjudication in the form of a decree, it cannot give rise to a right of appeal, except where an appeal is expressly provided. The view expressed above has not been accepted by the division bench of this Court which decided Kabi alias Alagappa Chettiar and others v. RM A. RM. V. Ramanathan Chettiar alias Srinivasan Chettiar 3 . already referred to. The division bench differed from the Nagpur full bench and observed that the aforesaid view ran counter to S. 2(2) of the Code of Civil Procedure. In view of the decision of the division bench, it is not necessary to discuss further about the decisions of the Bombay and Nagpur High Courts referred to above. 37. Learned counsel referred to the judgment of the Punjab High Court in Jot hi Parshad Lahrimal and other v. Ganesh Lal Ram Narain and another 4 . In that case, a preliminary decree in a partition suit was passed ascertaining the shares of the parties. The matter went up to the Supreme Court and before the appeal before the Supreme Court could be decided, some of the parties died and the shares underwent a change. Without giving a final decision on the question of shares, the Supreme Court dismissed the appeal and left the question for the determination of the trial court. As directed by the Supreme Court, the trial court took up the matter of fixation of shares and passed an order fixing them. Without giving a final decision on the question of shares, the Supreme Court dismissed the appeal and left the question for the determination of the trial court. As directed by the Supreme Court, the trial court took up the matter of fixation of shares and passed an order fixing them. In an appeal filed against the said order, the Punjab High Court held that the appeal was not maintainable as the order did not amount to a decree and it was only an interlocutory one, the correctness of which could be examined in the appeal against the decree which may ultimately be passed. The court also relied on the fact that no formal decree was drawn up. In view of the decision of the Supreme Court in Phoolchand v. Gopal Lal 5, the view taken by the Judge of the Punjab High Court in the above case is not correct. 38. In Bhagabat Sit v. Balaram Sit 1, it was held that an appeal lies only from a decree and not from a judgment and that unless a decree is drawn up in terms of the judgment that can be neither appealed nor executed. In that case, the munsif came to the conclusion that a petition for final decree in a suit for redemption was not maintainable as it was barred by limitation. Though the court held that there was a conclusive determination of the right of the plaintiff, there was no formal expression of the same as the decree was not drawn up. In view of the pronouncements of the Supreme Court referred to earlier, the judgment of the Orissa High Court may not be good law. 39. Learned counsel for the respondents placed reliance on Shakuntala Devi Jain v. Kuntal Kumari and others 2. That was a matter which arose under S. 47 of the Code of Civil Procedure. The appellant before the Supreme Court filed objections to the execution petition under S 47, Code of Civil Procedure. The objections were dismissed by the subordinate judge. Under the relevant civil rules and Orders, there was no requirement to draw up a formal expression of the decision under S. 47, Code of Civil Procedure, as a decree An appeal was filed in the High Court with a plain copy of the order and an application praying that the appeal be entertained without a certified copy of the order. It was stated that the appellant had applied for a certified copy of the order, but the same was not ready and that she would file the certified copy as soon as it was ready and available to her. The appeal was admitted and interim stay was granted. The attention of the Court was not drawn to the fact that a certified copy of the order had not been filed; nor was there any application for dispensing with the certified copy. When the appeal came up for hearing, an objection was raised by the respondent that in the absence of a certified copy of the order, the appeal was not maintainable. The appellant obtained a certified copy of the order and filed it along with an application under S. 5 of the Limitation Act for condonation of delay. The High Court dismissed the appeal and the application holding that the appeal was incompetent and that there was no ground for condonation of delay. Before the Supreme Court, two questions arose for consideration. The first was whether the appeal was incompetent in view of the fact that the certified copy of the order did not accompany the memorandum of appeal. The second was whether the delay in filing the appeal should be condoned. On the first question, the Supreme Court held that the appeal was defective and incompetent and it was not accompanied by a certified copy of the order. There was no dispute in that case whether the order appealed against was a decree as defined by S 2(2) Code of Civil Procedure or not. As it was an order under S. 47 Code of Civil Procedure, it fell clearly within the four corners of the definition. The facts of the present case bear no resemblance to the facts of the case before the Supreme Court. 30. Learned counsel for the respondents relied on the judgment in Badrinath v. Hari Bhagat 3. That was also a case in which it was held that the provision in O. 41, R. 1. Code of Civil Procedure, which requires that a memorandum of appeal should be accompanied by a certified copy of the decree was imperative. The same proposition was laid down by a division bench of the Rajasthan High Court in Labhmal v. Lalchand 4. Code of Civil Procedure, which requires that a memorandum of appeal should be accompanied by a certified copy of the decree was imperative. The same proposition was laid down by a division bench of the Rajasthan High Court in Labhmal v. Lalchand 4. There can be no dispute that the appeal is not maintainable if it is not accompanied by a certified copy of the decree. 41. While it is true that a litigant should not suffer for the default of the court in drafting the decree, it is equally true that no litigant shall take advantage of his own fault and claim a right of appeal. If the contention of the appellant in this case that because there is a determination of rights of parties with regard to the matters in controversy in the suit, the judgment of the lower court is a decree as defined by S. 2(2) Code of Civil Procedure is accepted, then every judgment will become appealable as there will necessarily be a determination of rights of parties with the result that the aggrieved party will file an appeal before a decree is drafted and get an innocuous order of stay of further proceedings thereby preventing the court below from drafting the decree. Ss. 33and 96, Code of Civil Procedure will have to be thrown over board in that event. In Rukmini Kumari v. Ram Shankar 1, appeals were riled against an order accepting the commissioner’s report in a partition suit and directing the preparation of a final decree. The district court admitted the appeals subject to the objection as to the maintainability and stayed further proceedings. Ultimately the appeals were dismissed on merits excepting for a small modification. Second appeals were filed in the High Court. A preliminary objection was raised that the appeals before the district court were not maintainable as they were filed prior to the preparation of the final decree and consequently the second appeals were also not maintainable. The appellants therein relied on the decisions of the Supreme Court in Jagat Dhish Bhargavas case 2, and Phoolchands case 3 and Shakuntala Devi Jains case 4, to which I have already made a detailed reference and the court distinguished the same. The court held that the appellants were responsible for the non-preparation of the final decree and they could not maintain the appeals. The court held that the appellants were responsible for the non-preparation of the final decree and they could not maintain the appeals. In the present case, it is not open to the appellant to contend that the decree has not been drawn up and he is not, therefore, in a position to produce a certified copy of the decree. It is the appellant who has prevented the passing of the decree by the trial court. In fact, he has obtained a stay of all further proceedings as soon as be filed a revision petition against the findings of the trial court. 42. Hence, I have no hesitation in holding that the present appeal is not maintainable. It is the duty of the appellant-plaintiff to furnish the particulars required by the trial court and have a decree passed. It is only against such decree, he can prefer an appeal. There is no necessity for me to state that by furnishing the particulars required by the trial court, the right of the appellant to challenge the findings rendered by the trial court will not be lost. 43. As a necessary corollary, the memorandum of cross-objections filed by some of the respondents has to fail. It is stated by learned counsel for the respondents that the memorandum of cross-objections was filed without prejudice to the right of the respondents to question the maintainability of the appeal. 44. Before parting with the case it must be pointed out that even if the appeal is held to be maintainable, the appellant is not entitled to have the appeal heard unless the full court-fee due on the memorandum of appeal is paid. The appellant has stated in the memorandum of appeal that the appeal is in-capable of valuation. That is clearly wrong. The court below has given the findings on the basis of which the amount which is due to the plaintiff can be calculated. If that is calculated, the value of the appeal can be arrived at by deducting the said amount from the claim made in plaint. The appeal is capable of valuation and the appellant ought to have calculated the value of the appeal and paid court fee thereon. The appeal ought not to have been numbered as the requisite court fee has not been paid on the memorandum of appeal. The appeal is capable of valuation and the appellant ought to have calculated the value of the appeal and paid court fee thereon. The appeal ought not to have been numbered as the requisite court fee has not been paid on the memorandum of appeal. Since I have held that the appeal is not maintainable, it is not necessary for me to give any direction with regard to payment of court-fee. 45. The appeal and memorandum of cross-objections are dismissed. But, there will be no order as to costs. This appeal and Memorandum of Cross objections having been set down on Tuesday the 11th day of October, 1988, the COURT DELIVERED THE FOLLOWING JUDGMENT :— 46. It is represented that respondents 4and 9 have also filed memo of Cross-objections in the appeal. Since the appeal itselfis not maintainable, the memo of cross objections is also not maintainable. I have dismissed the memo of cross obiections filed by respondents 3 and 10. Hence, the memo of cross objections said to have been filed by respondents 4 and 9 is also dismissed. No costs. (This appeal having been set down this day for being mentioned, the court delivered the following judgment)— 47. I have already, by my order dated 11th October 1986. dismissed the have been filed by respondents 4 and 9. As the counsel made a memorandum of cross objections had been filed, 1 passed that order. Now, cross objections said to representation that the the office states that the S.R No. of the cross objections said to have been filed has not been furnished If there is a memorandum of cross objections, it will stand dismissed by my order passed already. If there is no memorandum of cross objections, it does not matter. No further orders are necessary.