MUNICIPAL COMMITTEE OF NASIK; AMIRUDDIN MAHOMED HUSAIN; EKOBA GANASHET VANI; MAHMAD HUSSEIN MAHMAD ALLI; GULABCHAND RAUTMAL Vs. COLLECTOR OF NASIK; MAHOMED SAYAD MAHOMED ALI; SARAF ALLI MAHMADALLI; MARYAMBIBI AYAL SAMSUDDIN; BALIRAM NARAYAN

JUDGEMENT

(1.) We are dealing with five appeals:- F.A. 50 of 1914, F.A. 271 of 1913, F.A. 67 of 1914, F.A. 26 of 1913 and F.A. 293 of 1912. They all raise the same point and we have now to decide whether a finding on the issue "Is the plaintiff an agriculturist" can legally form the basis of a preliminary decree and, therefore, be the subject of an appeal. The subject of preliminary decrees in general is discussed in the referring judgments in the case of Chanmalswami v. Gangadharappa (1914) 16 Bom. L.R. 954 and we have the decision of the Full Bench in that case.

(2.) There is no doubt now that the words " the rights of the parties with regard to all or any of the matters in controversy in the suit" which occur in the definition of "decree" have not their widest possible meaning : they have a meaning restricted in some way or another. No one, for example, asserts that they include the right to ask a particular witness a particular question; or the right to put in evidence a particular document; and it is now decided by a Full Bench of this Court that they do not include the right to proceed with a suit in a particular Court or after a particular time.

(3.) How then are we to find out how the meaning of the words is restricted? To me it seems that the correct course is to ascertain their meaning from the provisions of the Code in which they occur. The words "decree" and " order "are so defined as to include all the orders a Court makes. We have some clue to what an order is in the enumeration of appealable orders given in Order XLIII of the Code. They certainly seem to include generally an order by the Court that it will or will not hear a suit on the merits and this general intention is not seriously disturbed by the provision that an order rejecting a plaint is a decree or by the fact that the dismissal of a suit on a preliminary point is a decree."Generally speaking, therefore, I infer that an order that a Court will proceed to hear a suit on the merits is not an order which should be immediately followed by a decree. And the decision of the Full Bench, so far as it goes, supports this conclusion.