KASI ALIAS ALAGAPPA CHETTIAR Vs. RMARMVRAMANATHAN CHETTIAR ALIAS SRINIVASAN CHETTIAR THROUGH HIS NEXT FRIEND, AVPLCTRAMANATHAN CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the respondents for the taking of partnership accounts. Valliappa Chettiar, the deceased father of the first respondent and Alagappa Chetty, the deceased father of the first appellant, carried on business as money-lenders and bankers at Theinzig in Burma under the name and style of " R. M. P.". Alagappa died in 1925, but his sons took.his place in the partnership and continued the business. On the 23 May, 1927, Valliappa also died and as his only son, the first respondent, was a minor at the time, Alagappa's sons, the first appellant and the deceased father of the third appellant, were left in sole management of the business and its assets. Though the first respondent attained majority in 1936 as he is deaf and dumb and mentally defective the present suit was brought in 1939 by one Ramanathan Chettiar his next friend and his deceased brother's widow who has adopted the second respondent. Various pleas were raised in answer to the suit in the written statement filed by the appellants who alleged, inter alia, that the business was not continued after the death of Valliappa but was wound up, only such acts of management as were necessary for winding up being done with the assent and approval of Venkatachalam Chetty who was administering the estate of Valliappa as the executor of his will, and that such assent and approval would bind the respondent. Numerous issues were framed in the suit and the Court below finding many of them for the respondents passed a preliminary decree on the 21 December, 1942, declaring the proportionate shares of the parties in the partnership and directing certain accounts to be taken by a Commissioner to be appointed for the purpose. Issues 7 to 14 were, however, reserved for consideration " at the time of passing the final decree." Among these undetermined issues were the following: (8) From what date is the plaintiff entitled to claim accounts ? (9) Whether the defendants have utilised the assets, advantages and facilities of the suit firm as alleged by the plaintiffs, and whether, for that reason, defendants are liable and to what extent ? (10) Whether the defendants carried on business of the suit firm after the death of Valliappa Chettiar or whether the firm was only being wound up by them? (11) Whether the plaintiffs are entitled to interest and if so, at what rate ? (12-a) Whether the acts of the defendants are validated by the assent and concurrence of Venkatachalam Chettiar, the second plaintiff, and the first plaintiff's mother as alleged by the defendants. (12-b) Whether the acts of the said Venkatachalam Chettiar in respect of the suit firm are valid and binding on the plaintiffs and whether the defendants are precluded from raising this plea by reason of the decision in O.S. No. 38 of 1935. It is, however, obvious that these issues had an important bearing on the accounts to be taken, and the Subordinate Judge fell into an error in directing the Com- missioner to take accounts without determining these issues. As might have been expected in such circumstances, the report submitted by the Commissioner was found to be defective and unsatisfactory, and the Court, after hearing the objections of the parties to the report and recording its finding on the said issues and also on certain charges formulated by the respondents on the statement of accounts filed by the appellants, passed an order on the 20 August, 1946, directing the Commissioner to take accounts afresh and submit a revised report in the light of the directions contained in the order within the time fixed therein. The respondents applied for duly certified copies of "judgment and decree " on the 22nd August, 1946, but seeing that, while printing charges were required to be deposited for the judgment, no stamp papers for a copy of the " decree " were called for, they applied on the 8 October, 1946, for a copy of the "decree." The application was, however, returned with an endorsement that no decree had been drawn up as only "findings " were given. Thereupon the respondents again applied on the 26 October, 1946, asking the Court to draw up a " decree " in the suit but the Court ordered on the said application that " there has been no final disposal but only directions have been given. Only a formal order will be drawn up." The " formal order" a copy of which was subsequently furnished to the respondent runs thus: This suit coming on for hearing on...before me in the presence of...and having stood over to this day for consideration, this Court doth order that the papers be and hereby are remitted back to the Commissioner to take a revised account of the assets and liabilities of the suit firm as they stood on 23 May, 1927 and the subsequent accounts of the partnership merely on the basis of the aforesaid accounts in the light of the various directions contained in this order, and submit a revised statement and report thereon within four weeks from this date ; and direct plaintiffs to deposit Rs. 150, towards the Commissioner's further remuneration within a week from this date ; and the case be and hereby is directed to be called on 18 September, 1946. It is against this decision that the present appeal is directed.

(2.) The respondents contending that the appeal is not maintainable as the decision of the Court below is not a " decree " within the meaning of Section 96, read with Section 2(2) of the Civil Procedure Code, 1908, applied to this Court for hearing and determining this question as a preliminary matter before the parties embarked upon further expenditure in connection with the appeal, and, the application having been granted, the case is posted before us for deciding the point.

(3.) Under the Civil Procedure Code, save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction (Section 96), while Section 104 provides for appeals from certain orders therein mentioned. The decision now under appeal is manifestly not one of the orders specified in that section, and unless it is a decree, the appeal would be incompetent. The question accordingly is whether the decision is a decree as that term is defined in the Code. The definition reads as follows: Section 2(2) Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. "Order " is defined as the formal expression of any decision of a Civil Court which is not a decree [ Section 2(14)] while a " judgment " is the statement given by the Judge of the grounds of a decree or order [ Section 2(9)].