GOVIND RAMCHANDRA SHEMBEKAR Vs. VITHAL GOPAL SAHASRABUDHE

JUDGEMENT

(1.) The appeal is preferred from a decree of the Subordinate Judge dismissing the suit, under the following circumstances. The suit was brought by the appellants to redeem the property in dispute according to the provisions of the Dekkhan Agriculturists Relief Act. The preliminary issue was raised in the Subordinate Judge s Court, whether the plaintiffs were agriculturists. That issue was found by the Subordinate Judge against the plaintiffs and he directed the plaintiffs to pay the requisite Court-fee within one week from the date of that finding. That order for the payment of Court-fee not having been complied with, the Subordinate Judge dismissed the suit under Order XVII, Rule 3. It has been held by the different High Courts that an order under Section 158 of the old Code of Civil Procedure, which is the same as Order XVII, Rule 3 is tantamount to a decree on the merits from which an appeal lies. Therefore, the final order made by the Subordinate Judge dismissing the suit was a decree, and it is because it was a decree that this appeal is allowed by law.

(2.) In arguing the appeal the appellants pleader challenges the correctness of the finding of the Subordinate Judge on the issue, whether the appellants are agriculturists. The objection is raised by the respondents pleader, that the appellants should not be allowed to re-open that question decided against them and to contend that they are agriculturists entitled take the benefit of the provisions of the Dekkhan Agricultures Relief Act. We think that the respondents contention must be allowed.

(3.) The decree appealed from is not a preliminary decree, but it is a final decree. There was, no doubt, the on the preliminary issue whether the appellants are agriculturists or not, and the Court ought to have made a preliminary decree in terms of its finding on that issue. But no decree was drawn up. And though the statutory obligation lay on the Court to draw up a preliminary decree to entitle the appellants to appeal, yet it was equally the duty of the appellants to ask the Court - to draw up that decree in order to enable them to present an appeal to this Court. That duty the appellants failed to discharge in their own interests, and it is a reasonable inference to draw from it that they waived the right which the Legislature had given to them of presenting an appeal against the preliminary decree.