(1.) THIS revision raises a difficult point on which there is a conflict of authority. This conflict makes the position of the bar very difficult and leads to unnecessary appeals and applications for revision, and that in turn leads to a prolongation of trials and a waste of judicial time. The difficulty which this sort of case raises is this. It is often convenient, and at any rate quite Usual, for Courts to try cases compartmentally. Thus, a question of limitation may be raised, or one about the admissibility of certain documents or other evidence, or it may be about an amendment of pleadings. The Court finds it convenient to decide the point first, either as a preliminary issue or otherwise, and so hears arguments, perhaps takes evidence, and makes an order embodying its decision. The question is whether such an order is a 'decree' within the meaning of Section 2(2), Civil P.C. If it is, then, unless the party against whom the order is made appeals at once or seeks in other ways to get the order amended or reversed, he runs the danger of being shut out from challenging it when the appeal from what I might term the decree proper is preferred. Some Nagpur decisions hold, or indicate, that such orders are decrees even though no formal decree is drawn up. Other High Courts, and they are in the majority, hold that they are not. In this state of uncertainty litigants dare not run the risk of not appealing or coming up in revision at an interlocutory stage. The position in the pre. sent case is this. The plaintiff is a lambardar who is suing a cosharer for the rental assessment on the latter's sir lands for 12 years before the suit. He happens to be a minor and so gets an extended period of limitation. He claimed Rs. 1044-12-0, which includes Rs. 888-8-0 on account of interest.
(2.) THE defendant does not deny that he is in general liable to pay in one way or another the rental assessment on his sir to the lambardar but he says that the lambardar has to pay him his share of the village profits and that he has not done so in all these years. The two liabilities in this case roughly cancel each other out and so neither side bothered his head about the small difference which remained each year this way or that, and the plaintiff's father specifically agreed that the one should be set off against the other each year. But he says that if the plaintiff wants a squaring up of the accounts he is quite ready to do that and to pay over to the plaintiff the small balance, (something in the neighbourhood of Rs. 10 which is all that is due when certain adjustments in the plaintiff's claim are made). He claims the right to set off Rs. 1010-7-6. The first Court holds that this cannot be done. Unfortunately, the learned Judge's reasons for so holding are given in another judgment of his and have not been reproduced in the present case. Here he merely refers to his decision in the other case and states his conclusions. That judgment is not on record and so I am obliged to rely on the arguments of counsel and such facts as I can gather from the judgment of the appellate Court. It seems that the learned Judge decided on the merits that the agreement set up had not been proved. He also came to the conclusion that the causes of action for the two claims were separate and distinct, and held that the two could not be tried together in this case and held that there was no right of set off. In addition to this, he also held that in any event the defendant's claim in respect of the first nine years was barred by limitation because, he not being a minor could not get thebenefit of the extended period of which the plaintiff had availed himself.
(3.) AND again, the decision only is that as a matter of procedure the claim cannot be set-off against the plaintiff's claim in this suit.