BENGAL COAL COMPANY LTD Vs. APCAR COLLIERIES, LTD,

JUDGEMENT

(1.) This is an appeal from an order recording a compromise or a partial settlement of a suit under Order 23, Rule 3, Civil P.C. The order appealed against was passed on 8 December 1922. On 15 January 1923 a decree was prepared in pursuance of that order in accordance with the provisions of Rule 3. On the 26 February this appeal was filed only against the order of the 8 December but no appeal was preferred against the decree. A preliminary objection was taken by Mr. Sircar on behalf of the respondents that the present appeal is incompetent in that the decree having been passed before the appeal was filed an appeal lay from the decree and not from the order which is superseded by the decree. We think this objection must prevail. So far as this Court is concerned it must be now taken to be settled that where a preliminary decree or order is followed by a final decree appeal does not lie against the former after the final decree is passed. All the cases on this point have been cited, considered and followed in Nanibala V/s. Ichhamoyee . In Madhu Sudan V/s. Kamini Kanta [1905] 22 Cal. 1023 the learned Judges observe that under Section 588 of the old Code (corresponding to Order 13 of the new Code) appeal hag been allowed from two classes of orders, some of which do not affect the decision of the case and some that do. In both cases the right to appeal from the order is lost after the preparation of the final decree. In that case the appeal was brought against an order of remand after the final decree was passed in the case. The learned Chief Justice in the course of his judgment laid down the principle that there could be no appeal against an order whether interlocutory or otherwise after the final disposal of the suit. In the case of Nanibala V/s. Ichhamoyee , the appeal was preferred against the preliminary decree in a partition suit after the final decree was made. The principle underlying these decisions is stated in Mackenzie V/s. Narsingh Sahai [1909] 36 Cal. 762 to be that if the appeal is brought from the preliminary decree after the passing of the final decree which is not appealed from, and if the appeal succeeds, the result would be that the final decree which had not been appealed against would have to be indirectly set aside, a state of things the Legislature could never have contemplated; or there would be a final decree binding on the parties inconsistent with the preliminary decree or order.

(2.) The learned Advocate-General for the appellant concedes that the law is settled as above, but be attempts to distinguish the present case on the ground that in the cases above referred to and those which they follow, some act had to be done and some further steps taken by the Court or the parties before the passing of the final decree; whereas in the present case the decree automatically followed the order and therefore any variation of the order must ipso facto govern and modify the decree. The distinction suggested is that in cases of remand orders and preliminary decrees in suits for partition or account the final decree is independent of the preliminary decree while in a case like the present the decree is dependent on and subordinate to the order which it merely follows and embodies.

(3.) As no authority directly in point has been placed before us, we have anxiously considered the point raised in all its aspects, but we have not been persuaded that any real distinction, as has been suggested, exists between the two classes of cases. The question relating to dependent and subordinate decrees was fully considered in the case of Nanibala Dasi v. Ichhamoyee Dasi and is the ratio decidendi of the case of Ugra Narayan V/s. Basanta Narayan 17 C.W.N. 868. The latter case is instructive and lays down the proposition that if the appeal is preferred from the preliminary decree before the final decree is passed the later decree should be held to be contingent on the result of the appeal. The principle of dependent and subordinate decree was first adumbrated in Shamapurshad V/s. Hurroprashad [1865] 10 M.I.A. 203 as applying to several actions based on the same foundation of right or "cause of suit," where the first action is challenged before the subsequent actions are decided. The same principle under similar circumstances has been extended to proceedings in the same suit.