1. We think that in the present state of the authorities, the general question, what is and what is not a preliminary decree, needs to be considered by a Full Bench. We are sensible of the difficulty of stating the question in a sufficiently clear cut and definite form. But this Court appears to have held that decisions on various points are preliminary decrees, and we feel grave doubts not only whether the particular decisions are right, but much more, whether the reason under pin? them is not capable of extension so as to cover trial Court's ruling; upon every dispute 1 point arising a ruling the trial. I find for example that was myse1fa Party to a ruling of this Court in Sidhannth v. Ganesk (1) which certainly seems to have held that the finding of an original Court upon Seaman points (1912) 14 Bom. L.R. 916 Misjoinder, Civil Application No. 21 of Limitation, (1913) decided on the 9th April 1914 Jurisdiction was in each case a preliminary decree. Upon further reflection, a careful examination of the cases bearing on the point, and the definition of decree in the Code, along with every section contained in the Code which can throw any light upon the subject, I am convinced that that decision is wrong, that it goes much too far, and tint if such findings really are preliminary decrees, it would be virtually impossible to deny that any ruling as to whether a document tendered were admissible or not, or a question objected to, relevant, would also be a preliminary decree.
2. Scott, Kt., C.J. who delivered the julgnent in Sidhanath v. Ganesh subsequently held in Rachappa v. Shidabbn civil. Application No. 21 of that a decision of this Court upon a question of jurisdiction was not a decree giving the parties aggrieved by it, a right of appeal to the Privy Council. These decisions certainly appear to be in conflict with each other.
3. Having regard to the definitions of a decree and a preliminary decree in the Code of Civil Procedure, I have formed a very strong opinion that no fin ling by a trial Court upon such points as limitation or jurisdiction, where that finding is in favour of the plaintiff and permits the suit to proceed can, in any true, sense, by a preliminary decree. It further seems that virtually every true preliminary decree is actually provided for in the Code itself. A comparison of these, with the class of findings I have just mentioned, brings out the radical distinction in principle between them with sufficient clearness. For my own part I would go even further, notwithstanding the current of authority in this Court and doubt with all becoming respect, whether in suits, under the Dekkhan Agriculturists' Relief Act a finding in limine that a party is or is not an agriculturist within the meaning of the Act, is a preliminary decree. That is a more difficult case requiring a finer analysis. But in every such suit the plaintiff claims some concrete relief, he wants money or land, and a finding that he (or a defendant) is or is not an agriculturist does Chanmal- nit conclusively determine any such right, but merely determines mines procedure, as a result of which the rights put in controversy will be settled and decreed. It is true that in many cases status alone may be decreed, and all such decrees are of course true decrees. But they are not preliminary. If the suit is for declaration of status, a decree conferring or refusing to confer that status concludes the suit, and leaves nothing more to be done.
4. But in suits under the Dakkhan Agriculturists' Relief Act,' finding that a party is or is not an agriculturist, does not determines any of the substantial rights which the Court is asked to give or withhold. It is thus that it is a matter in controversy, in respect of which the rights must be determined. But so is every detail of procedure, and rule of evidence, more or less directly. As I undarstand tin definition it describes two things: (i) the legal rights of the parties which are to be decreed or not dacreel. These are in a vast majority of cases concrete, as a sum of m may or piece of land or house, or some other form of real or personal property, (a) The said rights in respect of any or all the mutters in controversy. This means as I understand it, everything which is necassary in law, during the course of a trial, to the establishment or refutation of the alleged right. Every fact which a plaintiff alleges and a defendant denies comes under this head, as well as all the rules of procedure and evidence which hive to be enforced and followed during the trial. But these latter are means to an end, and the end is the right or rights claimed, and to be, or not to be decreed. The far wider construction put upon the words in this Court is, in my opinion, uncalled for, and will lead in practice to the most disastrous consequences. The conduct of civil business is already slow enough, but how can it ever be finished if the trial Judge his to frame twenty preliminary " decrees" in the coarse of every trial and so open the door to twenty saccassive appeals before any decision on the merits has been given? Upon this subject I may be permitted to call attention to the weighty words of their Lordships of the Privy Council in Maharajah Moheshur Sing v. The Bengal Government (1856) 7 M.I.A.
283. This is not a question of mere words, empty dialectic, but of great and far reaching practical importance. I believe that this Court stands alone in the extension it has given to the meaning of the term "preliminary decree," and in view of the steadily increasing number of appeals from what are called preliminary decrees, and may fairly be said to have been held to be preliminary decrees by this Court, and the resultant delays, expenses, and harassments to which suitors are being subjected, it is very desirable that the whole question should be fully considered and authoritatively settled by a Full Bench.
5. The plaintiffs sued defendants for an injunction in respect of certain religious ceremonies. The defend, ants raised a preliminary defence that the matters in dispute were caste questions outside the jurisdiction of Civil Courts. The original Court held that the matters were within the jurisdiction of the Civil Courts. The District Court held on first appeal that this decision was not appealable at that stage, as it did not amount to a preliminary decree within the meaning of Section 2 of the Code of Civil Procedure. This Court has been asked to hold on second appeal that the decision was a preliminary decree and subject as such to appeal, relying on the cases of Krishnaji v. Maruti and Sidhanath v. Ganesh in which it
was held respactively that the decision as to the defendant being an agriculturist and the decisions as to misjoinder, limitation and jurisdiction were preliminary decrees inasmuch as they determined the rights of the parties with regard to matters in controversy in the suit within the meaning of Section 2, Civil Procedure Code.
6. It has, however, been conceded that these decisions, if pressed to their logical conclusion, would cover all interlocutory orders passed in the suit, a result strongly condemned by the Privy Council in the following terms; "We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory Order by which he may conceive himself aggrieved under the penalty, if he does not do so of forfeiting for ever the benefit of the consideration of the appellate Court. No authority or precedent has been cited in support of such a proposition and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay and on the other inflict upon his opponent similar calamities," in the case of Maharajah Moheshur Sing v. The Bengal Ghaniul-Governments) under the old Civil Procedure Code. It has been further pointed out that it was held in Rachappa v. Shidappa (1859) 7 M.I.A. 283 at p. 832 under the present Civil Procedure Code, that a decision upon jurisdiction by the High Court had only the effect of regulating procedure and decided none of the rights of the parties for purposes of appeal to the Privy Council. It is necessary in all these circumstances to examine with particular care all the provisions relating to preliminary decrees contained in the present Civil Procedure Code before coming to the conclusion that a result so strongly condemned by the Privy Council has been intended by the Legislature.
7. No doubt such a result might be deduced from a literal interpretation of the words of the definition " decree means the formal expression of an adjudication which...determines the rights of the parties with regard to all or any of the matters in controversy in the suit" and of the explanation 41 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" in Section 2 Civil Application No. 21 of 1913, decied on 9th April 1914. But it would appear that a limited interpretation was contemplated and that the adjudication determining the rights of the parties was meant to be an adjudication after a complete hearing of the case, because it has been provided that only after such a hearing should judgment be pronounced and be followed by decree by Section 33. This has been made still clearer by the rules relating to the hearing of the suit. It has been provided that preliminary issues of law should be tried if those issues would dispose 0f the suit by Order xiv, Rule 2, and that if the finding should not be sufficient for the decision there should be a postponement of the hearing of the suit but that if the finding should be sufficient for the decision judgment should be pronounced, even though the hearing should not have been fixed for the final disposal of the suit by Order xv, Rule 3. It has been further provided that only after the case has been heard should there be judgment and that there should be a finding on each issue unless a finding on one or more issues should be sufficient for the decision of the suit and that the judgment should be the basis of the decree and that the relief granted or other determination of the suit should be clearly specified in the decree by Order xx, Rules 1, 5 and 6. The limited interpretation contemplated has been indicated with sufficient precision by the following rules which specify the cases in which preliminary decrees may or shall be Passed in anticipation of the prescribed final decrees. These cases are administration suits, suits for dissolution of partnerships, account suits and suits for partition dealt with in Order xx, Rules 13, 15, 16 and 18. The only other preliminary and final decrees provided are those in mortgage suits under Order xxxiv. Special forms for these preliminary and final decrees have been prescribed in Appendix D, Nos. 3, 4 to 11, 17 to 20 and 22 of the 1st Schedule. It has then been provided that if a preliminary decree should not give satisfaction there must be an immediate appeal and that the questions thereby decided should not be open to dispute on appeal from the final decree by Section 97. But it has been recognized that there well might be many interlocutory orders not appealable as orders under Section 104 and not amounting to decrees which might seriously affect the final decision of the suit and it has been expressly provided that such orders should be open to consideration on appeal from the decrees by g. 105, Civil Procedure Code. It appears to me incontrovertible in view of all these provisions that the limited interpretation indicated has throughout been contemplated and that the only preliminary decrees sanctioned have been exhaustively enumerated subject of course to extension by further rules lawfully framed and that in all other cases the final determination of the suits has been required before preparation of the decrees. This limited interpretation has moreover the merit of avoiding the evils so sirongly condemned by the Privy Council and there would be a strong general presumption against any other interpretation out of respect for the Legislature.
8. This matter is of far-reaching consequence to the administration of justice and should therefore, in my opinion, be referred for final decision by the Full Bench.
9. This reference was heardon the 29th September 1914 by a Full Bench composed of Scott C.J. and Heaton, Macleod, Shah and Hayward JJ.
10. D.A. Khare, for the appellant.--The term 'decree' is defined in the present Civil Procedure Code 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." It may be either preliminary or final. 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." This definition limits the point of decision to matters which determine the rights of parties. Matters in controversy arise on the pleadings of the parties, and are focussed in the issues raised.
11. It cannot be said that every preliminary decree gives a ground of appeal. But when there is a question of jurisdiction, and the Court gives its decision on the question, there is a preliminary decree and an appeal lies from it; Sidhanath v. Ganesh , Sakharam v. Sadashiv (1913) 15 Bom. L.R. Kaluram v. Ganga ram (1913) 16 Bom. L.R. 67 and Narayan v. Gopal (1914) 15 Bom. L.R. 206.
12. The Court should only go upon the definition of the term decree in
8. 2 of the Code, The enumeration of preliminary decrees in other sections and rules is not exhaustive. The section means that all rights, which are in contest between the parties and which are in controversy before a Court, when decided become the subjects of a decree. Compare Section 109 of the Code which makes a distinction between decree and final order. The word decree is not separately defined in the section, as was done in the old Code; but it obviously refers back to Section 2.
13. The term ' preliminary ' must be construed with reference to the main definition. When the decision refers to any matters in suit, the decree is preliminary; it is final, when it refers to all matters in suit.
14. Dhurandhar, with G.S. Mulgaonkar, for the respondent.-The distinction between a preliminary decree and a final decree is that the latter completely disposes of the suit, whilst the former only disposes of it partially.
[Scott C.J.Do you contend that "rights of the parties "mean the whole bundle of rights?]
15. I mean the rights with regard to which a suit is brought. Every preliminary decree contemplates "further proceedings, before the suit is completely disposed of. This import or meaning is made clear by instances of preliminary decrees given in the Code. Those instances are: (x) Administration suits (Order xx, Rule 13; App. D, Form No. 17); (2) Suits for dissolution of partnerships (Order xx, Rule 15; App. D, Form No. 21); G. v' (3) Account suits (Order xx, Rule 16); (4) Suits for partition (Order xx, Rule 18); and (5) Mortgage-suits (Order xxxiv, Rule 2, App. D Forms Nos. 3, 4, 5, to 9). In all these cases, the Court in the first instance determines the rights of the parties, and directs further proceedings to be taken. The Court stays its hands and awaits the result of those proceedings. The enumeration of preliminary decrees given in the Code is exhaustive: Khadem Hossein v. Etndad Hossein (1901) I.L.R. 29 Cal. 753 which brought in Section 97 in the new Code.
16. The definition of decree ' as given in Section 2 cannot be limited in any way. The decision in a case must be arrived at after the whole hearing of the case (Section 33), except which it can be reached on a preliminary question of law (Order xiv, Rule 2).
[Scott C.J.Section 33 says what should be done under certain circumstances: it does not say what should be done in all cases. The question seems to be, what is the meaning of rights', to what extent can ' rights' be limited?]
17. The 'rights' means substantial rightsthe rights with regard to which relief is sought.
[Scott C.J.The Court has to consider rights' with reference to the matters in controversy.]
18. The definition of decree' is in very wide terms. Some limitation should be placed on their meaning. What the limitation must be is suggested by the provisions of the Code; Order xv, Rule 3; Order xx, Rules 5 and 6.
[Macleod, J.Can a judgment be a decree if it decides the suit one way, and not be a decree if it decides the suit the other way?]
19. Yes, because in the former case the suit is decided; which it is not in the second case.
20. As to what orders are considered decrees, see Bhikhaji Ram-chandra v. Purshotam (1885) I.L.R. 10 Bom. 220, Subbayya v. Saminadayyar (1913) I.L.R. 35 All, 159; and Maharaja Dhiraj Maharana Shri Mansingji v. Mehta Hari-harram Narharram (1895) I.L.R. 18 Mad, 496.
21. Khare, in reply.-The words "the formal expression of an adjudication which conclusively determines the rights of the parties" include a decision of the point of jurisdiction. The word "right" includes the determination whether a particular Court should go into a claim or not, and points to the right of a party to get his relief from a particular Court.
[Heaton, J.An adjudication of a question of jurisdiction is not an adjudication on merits.]
22. The " rights " are not merits. They include both substantive rights and adjective rights. "Matters in controversy" refer to both questions of procedure and questions regarding which relief is claimedin short, they refer to all matters which go to the root of the question.
[Shah, J. referred to Bharat Indu v. Yakub Hasan (1894) I.L.R. 19 Bom, 307.
Cur. adv. vult.
Basil Scott, Kt., C.J.
23. The question arising in the suit in which this reference has been made is he there decision in favour of the plaintiff upon a preliminary defence that the matters in dispute were caste questions outside the jurisdiction of civil Courts, amounts to a preliminary decree from which the unsuccessful party must at once appeal by reason of so 97 of the Code, and the referring judgments call attention to Sidhanath v. Ganesh in which it was held that decisions as to
misjoinder, limitation and jurisdiction are preliminary decrees. This Court is of opinion that the judgment in the last mentioned case was wrong and that such decisions are not preliminary, decrees nor is the decision in the referred case a preliminary decree. We also think certain dicta in Narayan v. Gopal which are based
upon Sidhnath v. Ganesh, go too far.