CHANMALSWAMI RUDRASWAMI Vs. GANGADHARAPPA BASLINGAPPA

JUDGEMENT

(1.) We think that in the present state of the authorities, the general question, what is and what is not a preliminary decree, needs to be considered by a Full Bench. We are sensible of the difficulty of stating the question in a sufficiently clear cut and definite form. But this Court appears to have held that decisions on various points are preliminary decrees, and we feel grave doubts not only whether the particular decisions are right, but much more, whether the reason under pin? them is not capable of extension so as to cover trial Court s ruling; upon every dispute 1 point arising a ruling the trial. I find for example that was myse1fa Party to a ruling of this Court in Sidhannth v. Ganesk (1) which certainly seems to have held that the finding of an original Court upon Seaman points (1912) 14 Bom. L.R. 916 Misjoinder, Civil Application No. 21 of Limitation, (1913) decided on the 9th April 1914 Jurisdiction was in each case a preliminary decree. Upon further reflection, a careful examination of the cases bearing on the point, and the definition of decree in the Code, along with every section contained in the Code which can throw any light upon the subject, I am convinced that that decision is wrong, that it goes much too far, and tint if such findings really are preliminary decrees, it would be virtually impossible to deny that any ruling as to whether a document tendered were admissible or not, or a question objected to, relevant, would also be a preliminary decree.

(2.) Scott, Kt., C.J. who delivered the julgnent in Sidhanath v. Ganesh subsequently held in Rachappa v. Shidabbn civil. Application No. 21 of that a decision of this Court upon a question of jurisdiction was not a decree giving the parties aggrieved by it, a right of appeal to the Privy Council. These decisions certainly appear to be in conflict with each other.

(3.) Having regard to the definitions of a decree and a preliminary decree in the Code of Civil Procedure, I have formed a very strong opinion that no fin ling by a trial Court upon such points as limitation or jurisdiction, where that finding is in favour of the plaintiff and permits the suit to proceed can, in any true, sense, by a preliminary decree. It further seems that virtually every true preliminary decree is actually provided for in the Code itself. A comparison of these, with the class of findings I have just mentioned, brings out the radical distinction in principle between them with sufficient clearness. For my own part I would go even further, notwithstanding the current of authority in this Court and doubt with all becoming respect, whether in suits, under the Dekkhan Agriculturists Relief Act a finding in limine that a party is or is not an agriculturist within the meaning of the Act, is a preliminary decree. That is a more difficult case requiring a finer analysis. But in every such suit the plaintiff claims some concrete relief, he wants money or land, and a finding that he (or a defendant) is or is not an agriculturist does Chanmal- nit conclusively determine any such right, but merely determines mines procedure, as a result of which the rights put in controversy will be settled and decreed. It is true that in many cases status alone may be decreed, and all such decrees are of course true decrees. But they are not preliminary. If the suit is for declaration of status, a decree conferring or refusing to confer that status concludes the suit, and leaves nothing more to be done.