KALYANI ROY Vs. MANNUJAN BEWA

JUDGEMENT

(1.) The instant Misc. Appeal is directed against the judgment and order dated 8th May, 1990 passed by the learned Additional District Judge, 6th Court, Alipore in Title Appeal No. 442 of 1988 and in terms of the order passed therein the appeal was allowed and the Appeal Court remitted the case back to the Trial Court. The Trial Court by its judgment and order No. 47 dated 29.8.88 disposed of an application on twin points namely, whether the suit is maintainable in view of non-joinder of necessary ,parties and the point of limitation. The Trial Court has recorded a finding while making disposal of the said application that the suit is barred by law of non-joinder of necessary parties. A suit may be bad for non-joinder of necessary parties, but it is difficult to reconcile to the proposition of law that there may be an absolute bar of a suit flowing from non-joinder of necessary parties. That apart the said point cannot be taken up as a preliminary point within the meaning of the proviso superseded to Order 14 Rule 2 of the Code of Civil procedure which contemplates preliminary points being restricted to the eventualities-(1) where the Court is not competent to try the suit for want of jurisdiction, and (2) where a bar has been created by operation of law and/or self contained statute. The point about non-joinder of parties does not ipso facto satisfy the teat of the preliminary point. Another point was, a point of maintainability and the Appeal Court has reversed the finding of the Trial Court on the footing that the question of limitation is a mixed question of fact and law and as such the same cannot be gone into at the point of threshold by way of preliminary point nor it can be included within the ambit of the proviso to Order 14 Rule 2 of the Code of Civil Procedure. The Trial Court passed a peculiar order while making disposal of the said petition by simpliciter holding that the suit is not maintainable. The same is preceded by finding that the suit is barred by limitation and the court fees paid are correct. The expression in the penultimate portion about payment of court fees is of germane sequence.

(2.) Mr. M. L. Bhattacharyya, learned Advocate appearing for the appellant, has primarily centred his attention on the proposition that no appeal lies against the order passed by the Trial Court as it does not satisfy the meaning of the expression "decree". The term "decree" has been defined in section (2) of the Code of Civil Procedure. "Decree" means 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 and may be either preliminary or final.

(3.) The expression used in the defination column about conclusive determination of the rights of the parties is of pivotal significance and the same determination may relate to all or any of the matters in controversy in the suit as may be either preliminary or final. Mr. Bhattacharyya has also tried to draw a line of distinction between the right to sue or to proceed with the suit in the form of carriage of proceeding and determination of relevant issue arrived at the trial. According to Mr. Bhattacharyya, if a parry is precluded at the point of threshold to embark into a journey for a legal combat in the field of determination either of the issues or of the controversies involved therein, that cannot satisfy the test of definition of a decree. Mr. Bhattacharyya has made copious references from earliest decisions of this Court in order to substantiate his points that the impugned order passed by the trial court partakes of the character of a decree within the meaning of section 2(2) of the Code of Civil Procedure. In support of his contention Mr. Bhattacharya has referred to a decision in the case of Shib Sharan Sha v. Janaki Nath Dey and Others, reported in 18 CJ 78 where it was held that where out of manifold issues only two issues were taken up for hearing and they were decided. The other issues being left off to be proceeded whit on a later date, the same will not he open to an appeal as it cannot be deemed as a decree. Mr. Bhattacharyya has also referred to the case of Manash Ranjan Chakrabarly v. Tropical Accumuslators Ltd., reported in AIR 1957 Cal 135 where it has been held that the order holding that the Court has jurisdiction to try to the suit as preliminary issue is neither a decree nor an order appellable under Order 43 Rule 1 of the Code of Civil Procedure. Mr. Bhattacharyya has also referred to some other decision of contemporaneous period namely, the decisions reported in AIR 1964 SC 497 at paragraphs 36 and 37 and he has also relied on another decision which is reported in Cal. Law Times 1989 Vol. II Page 196. It is the contention of Mr. Bhattacharyya that the order impugned does not and cannot come within the ambit of the connotation of the expression "decree".