VAMANACHARYA RAMACHARYA Vs. GOVIND MADHAVACHARYA

JUDGEMENT

(1.) The plaintiffs-appellants sued as agriculturists for redemption of two mortgages after taking accounts under the Dekkhan Agriculturists Relief Act. The first two issues were : (1) are the plaintiffs agriculturists? and (2) is any of the plaintiffs an agriculturist? On August 26, 1919, the Subordinate Judge gave findings on these two issues with the reasons. He held that the plaintiffs were not agriculturists at that time, but plaintiff No. 1 and his deceased brother were agriculturists when the mortgages in suit were passed and when the mortgage debt was incurred. On the same day he appointed two Karkuns as Commissioners to take accounts under the Dekkhan Agriculturists Relief Act, and added that findings on the remaining issues would be recorded after the return of the commission. His findings on those issues are given in a judgment of April 8, 1920, when he passed orders for redemption in favour of the plaintiffs, fixing the amount payable, etc. The plaintiffs made an appeal from his decree, objecting that the amount found due on taking the account was excessive, that the terms of redemption should be lighter, and that the lower Court should have held the plaintiffs to be agriculturists at the date of suit, The respondents filed a cross- objection that the plaintiffs were not agriculturists and were therefore not entitled to accounts at all under the Dekkhan Agriculturists Relief Act. On this cross- objection the Assistant Judge, who heard the appeal, decided that the plaintiffs were not agriculturists even at the time of the mortgage transactions. At the hearing before him it was argued that the respondents cross-objection in respect of the finding of the lower Court on the question of status was time-barred as not having been filed within the statutory period from the date of the finding on the preliminary issue as to status. But the Assistant Judge held that, as no preliminary decree for the taking of an account had been drawn up after the finding about the plaintiffs being agriculturists, there was no obligation on the respondents to appeal. A second appeal was made to this Court, in which, among other things, the same objection is taken to the cross-objection of the respondents as had been unsuccessfully urged in the first appeal Court. The appeal was, how. ever, summarily dismissed by the learned Chief Justice. The present appeal comes before us under the Letters Patent

(2.) The main contention of Mr. Koyajee for the appellants is that, though no preliminary decree was actually drawn up, yet the case falls within the ruling in Municipal Committee of Nasik City V/s. Collector of Nasik (1915) I.L.R. 39 Bom. 422 : 17 Bom. L.R. 324 that a finding on a preliminary issue as to status under the Dekkhan Agriculturists Relief Act should be regarded as a preliminary decree, when that finding at once necessarily involves the result that accounts should be taken under the Dekkhan Agriculturists Relief Act He contends that the actual drawing up of a preliminary decree in such a case is a mere formal and ministerial act, not affecting the provisions of Section 97 of the Civil Procedure Code, which only speaks of a decree being "passed" and not of its being "drawn up". He also relies upon Ahmed Musaji V/s. Hashim Ebrahim (1915) L.R. 42 I.A. 91 : 17 Bom. L.R. 432. In my opinion, the latter case does not lend any real support to Mr. Koyajee's contention, for it seems clear from the reported facts of that case that there had been a formal preliminary decree drawn up from which an appeal could properly be made, and the point in dispute in that case was really quite a different one, namely, whether Section 97 did not apply because the decretal part of the adjudication was based on a matter not contested, and the reference objected to might have been made separately as an order. It seems to me that the present question is really determined by the rulings of this Court in Sakharam Vishram v. Sadashiv Balshet (1913) I.L.R. 37 Bom. 480 : 15 Bom. L.R. 382 and Kaluram v. Gangaram (1913) 16 Bom. L.R. 67. Those cases definitely decided that the right of appeal under Section 97 of the Civil Procedure Code only arises when a preliminary decree is drawn up. It is also there pointed out that it is the duty of the Court, and not of the parties, to see that a decree is actually drawn up in the suit, when this should properly be done.

(3.) These decisions virtually dissent from the view as to waiver of the right of appeal taken in Govind V/s. Vithal (1912) I.L.R. 36 Bom. 536 : 14 Bom. L.R. 560 which is the only substantial authority for Mr. Koyajee's contention. It seems to me that the drawing up of a decree, or the omission to do so, must be taken as conclusive on the question whether the Court has in fact passed, or not passed, a preliminary decree, and that this is the only proper test to apply in considering whether the provisions of Section 97 are, or are not, applicable. Reference may also be made to Sidhanath Dhonddev V/s. Ganesh Govind (1912) I.L.R. 37 Bom. 60 : 14 Bom. L.R. 916 and Bai Divali V/s. Shah Vishnav Manordas, (1909) I.L.R. 34 Bom. 182 : 11 Bom. L.R. 1326 where this test was so applied. The Full Bench ruling in Chanmalswami V/s. Gangadharappa (1914) I.L.R. 39 Bom. .339 : 16 Bom. L.R. 954 F.B. only overrules the former case, in so far as it held that decisions as to misjoinder, limitation and jurisdiction (though not disposing of the suit) were adjudications, in respect of which a preliminary decree ought to be passed. The Full Bench decision leaves the other point entirely untouched. And it is clear from the remarks of the learned Judges in Municipal Committee of Nasik City v. Collector of Nasik (1915) I.L.R. 39 Bom. 422 429 433 : 17 Bom. L.R. 324, that they would not have admitted the Appeal No. 293 of 1912, if the adjudication that the plaintiff was an agriculturist had not been formally expressed in a decree. There is, therefore, the clearest authority against our accepting the contention of Mr. Koyajee.