NARAYAN BALKRISHNA KULKARNI Vs. GOPAL JIV GHADI

JUDGEMENT

(1.) The plaintiffs sued to have an account taken under the provisions of the Dekkhan Agriculturists Relief Act of all transactions from the commencement in connection with two mortgages of the 20th December 1865 and the 21st December 1865, and to have the amount due determined, and to obtain a decree for redemption.

(2.) The learned Subordinate Judge on the 30th of August 1910 passed a decree for the plaintiffs for possession of the property, except one survey number, free from incumbrances, the defendants having received profits for twenty-five years after the debt had been paid off. Before passing that decree the learned Judge had investigated certain questions of fact in issue between the parties with reference to the amounts due in respect of different mortgages and different plots of land. Then instead of making up the final mortgage account himself he, as is permissible under the Civil Procedure Code, referred the taking of the account to a Commissioner, The Code provides, Order xxvi, Rule 11, that "in any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment" and Rule 12(2) provides that " the proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit." In the present case the work of the Commissioner appears merely to have been the ascertainment of the figures based upon the facts found by the Subordinate Judge, and the figures having been furnished by the Commissioner, and neither party objecting, the Court found the fact to be that the whole debt had been paid out of the profits of the mortgage-property, and passed the decree already referred to.

(3.) From that decree an appeal was preferred to the First Class Subordinate Judge, with appellate powers, and a preliminary objection was taken that the appeal was time-barred, inasmuch as time ran from the date when the Court issued the commission to the Commissioner to take the account on the ground that the issue of a commission or the instructions which were recorded for the benefit of the Commissioner at the time of the issue of commission constituted a preliminary decree within the definition of Section 2 of the Civil Procedure Code. This preliminary point found favour with the appellate Court and the appeal was accordingly dismissed, because the matters decided by the Subordinate Judge on the question in issue between the parties were decided in fact by the 15th of August when he issued his directions to the Commissioner.