KALURAM PIRCHAND MARWADI Vs. GANGARAM SAKHARAMSHET SHIMPI

JUDGEMENT

(1.) The plaintiff brought the present suit for an account and for recovery of the balance due by the defendant, who was the owner of ginning and pressing factory and with whom the plaintiff had dealings as a customer. Several issues relating to the agreement between the parties, custom of the trade, interest and other details were raised by the trial Court. After recording findings on these issues the Court ordered accounts to be settled as per findings on the 30th June 1910. It was also ordered on the same day that the plaintiff ought to apply for commission within four days from that date or put in his own statement of accounts so that defendant may check it and ascertain its correctness. Ultimately a commissioner was appointed to take accounts. He took accounts and found that a certain sum was due by the plaintiff to the defendant. The Court accepted the commissioner s report and dismissed the plaintiff s suit with costs on the 26th September 1910.

(2.) The plaintiff appealed to the District Court against the final decree and urgedobjections to the findings recorded by the trial Court, in accordance with which the account was taken between the parties. The lower appellate Court refused to allow the appellant to urge his objections on the ground that the order dated 30th June 1910 amounted to a preliminary decree, and that the plaintiff having failed to take steps to appeal against the preliminary decree, he must be deemed to have waived his right to appeal against the preliminary decree based upon these findings. The lower appellate Court accordingly confirmed the decree of the trial Court.

(3.) The present second appeal is preferred by the plaintiff against the decree of the lower appellate Court, and it is urged that the view taken by that Court as to the plaintiff s right to object to the findings in his appeal against the final decree is not correct. The defendant, though served, has not appeared. The learned pleader for the appellant, however, has argued the case before us fairly.