Appeal and Revision=Preliminary decree-a-Meaning of-Decision 0/1 issue not
disposing of suit

Civil Procedure-s-Order-s-Meaning oj

Civil Procedure=Preliminary decrce= Meaning of-Decision all iSSIII'S 1I0t dis-
posing of suit

In a suit by plaintiff against the defendant. the court, at the request of
the defendant, determined three of the six issues for trial in advance of the
other issues. The court's decisions did not dispose of the suit. The de-
fendant applied for a preliminary decree to be made upon such findings,
and for a stay of proceedings upon the remaining issues pending the de-
termination (If an appeal upon the said findings.

Held: {i) The power given to the court by section 97 of the Civil
Justice Ordinance 1929 to make ;) preliminnry decree directing accounts and
inquiries can only be exercised after the suit has heen heard. and where. al-

* Coun: Creed C.l.. Sandes and Evans JJ

though the rights of the parties with regard to the matter in dispute have
been determined, the details of the final decree have to be ascertained by
further inquiry. Similar preliminary decrees are authorised to be made in
suits for sale or foreclosure. or for partition. In these cases the preliminary
decree is appealable under section 169. Except in these cases. no decree
may be made until after the suit has been heard and finally determined
as provided in sections 92 and 94. It follows that, where a court has de-
cided certain is. s ues (which do not dispose of the claim) and the circum-
stances 'are not appropriate for the issue of a preliminary decree of one of
the recognised categories, the trial must proceed, and there can be no de-
cree, and consequently no appeal. until after the whole claim has been
heard. Section 4 (4) is not to be interpreted as permitting a wider class of
preliminary decrees.

(ii) It would be entirely improper to treat as orders subject to revision
any findings on particular issues which do not dispose of the claim.

Chanmalswami v, Gangadharappa (1914) A.I.R. Bombay 149.

Dattatraya v. Radhabai (1921) A.I.R. Bombay 220.

Kamini Debi v. Promotlio (1915) A.I.R. Calcutta 272.

Mabarajak Maheshur Sin;.:11 v. The Bengal GO'·I. (1857-59) 7 M.T.A. 283,3

W.R. 45 (P.e).

Sidhanath v, Galles" Govind (1912) 37 Bombay 60. A.I.C. 637.
Bharatendu v, Yacub Hussein (1913) 35 Allahabad 159, 18 I.C. 701.
Krishanii v . M aruti ( 1910) I.C. 966.

Siddanath v. Guneth (1913) 17 I.C. 687.

Taleb Ali v, Abdel Aziz .1930) 57 Calcutta 1013, 123 I.C. 305.
Kanthi Nath v. Nathu ;~am (1911) (Punjab).

Parsotam Rao Tontia v. Radlia Bai (1912) (Allahabad).
Shib Sharan Sha v. Jc iaki Nath Day (1913) (Calcutta).

Government Pensic .5 Ordinance 1919.55.32,34.

Civil Justice Ordi .. nee 1929. ss. 72. 73, 4 (4). 4 (15). 92. 93. 94, 97,
I 69-0rder vm : (I), Order X, 170 (2).

Indian Civil Pro; edure Code, Rules 1, 2. 5, 6, 33, 104, 105, 97 and Or-
der XV.

Revision

May 13, 19 9. Creed CJ.: This application arises in connection
with a suit insti .rted in the High Court, Khartoum, by Ahmed Orner,
respondent, a retired Government official now on pension, against the
Sudan Government, applicant, claiming a declaration that his wife and
children will be entitled to a pension payable by the defendant Govern-
ment after his death. The Advocate General appeared on behalf of
the Sudan Government and resisted the claim. After examination of
the parties at the first hearing of the suit in accordance with section 72
of the Civil justice Ordinance 1929, the learned judge with the agree-
ment of the parties framed the issues in the following form:

( 1) Is the Government under any duty, contractual or other-
wise, and if so what duty, to the plaintiff to pay in certain
contingencies a pension to his wife and children?

(2) If so, has the plaintiff any present cause of action against
the Government for breach of that duty?

(3) If so, should the court, in the exercise of its discretion and
in the circumstances of this case, grant the kind of declara-
tion prayed?

(4) Does the period of two years four months and eleven days,
included in the calculation of pension as extra compensa-
tory service under Financial Circular 124, count as actual
service within section 34 of the Government Pensions Ordi-
nance 1919?

(5) Are the widows and children of a deceased official who
was retired under section 32 of the Government Pensions
Ordinance 1919, and whose marriage took place subsequent
to his retirement, entitled to a pension under section 34?

(6) To what declaration if any is the plaintiff entitled?

An application was made on behalf of the defendant that the
three first issues should be determined before issues 4, 5 and 6, and
the learned judge recorded that it would be convenient to adopt that
course, and proceeded to do so. The learned judge decided issues 1,
2 and 3 in favour of the plaintiff, and gave written reasons for his
decisions. He entitled those reasons, in my view incorrectly, with the
word "Judgement."

On March 6, 1938, the learned Advocate General applied to
the High Court for a preliminary decree to be made in respect of the
findings on issues 1, 2 and 3, and for a stay of the proceedings upon
the remaining issues, pending the determination of an appeal upon the
decisions of these three issues. On March ] 2, 1938, in the presence of
both parties, the learned judge refused the application for a prelimi-
nary decree to be made, and on the application of the defendant, ad-
journed the case sine die, in order that an opportunity might be given
for an application to be made to this court for revision of his order
refusing to make a preliminary decree.

The learned Advocate General in due course made a written
application for the revision of the order of the High Court. At

the beginning of the hearing of the application before this court the
learned Advocate General withdrew certain parts of his written ap-
plication, and the following are the grounds of the written application
which now concerns us:

s , ( 1) The learned judge was wrong in law in interpreting
section 4 (4) of the Civil Justice Ordinance in that (a) he dis-
regarded the plain and ordinary meaning of the words defining a
preliminary decree in favour of a meaning which the words are
not capable of bearing, and (b) in disregard of the plain and
unqualified words of section 4 (4) he held that it only applies
in certain cases,

"(2) The learned judge was wrong in law in holding that
there is no duty on the court upon request by a party agrieved
to give formal expression to an adjudication which would, if
formally expressed satisfy the definition of a preliminary de-
cree in section 4 (4) of the Civil Justice Ordinance, so as by such
refusal to deprive such party of his immediate right of appeal."

At the hearing an alternative application was made, namely that

this court should treat the finding.'> of the High Court on issues 1, 2 and
3 as orders subject to r vision, hear argument on these findings, and
reverse them,

The learned Ad, 1cate General was heard at great length in sup-
port of his application. He drew the attention of the court to the
definition of the ten . "decree" in section 4 (4) Civil Justice Ordinance
1929 which reads .S follows: "'decree' means the formal expression
of an adjudicatior which, so far_as regards the court expressing it,
conclusively determines the rights of the parties with regard to all or
any of the matter 5 in controversy in the suit and may be either pre-
liminary or final,' and to the explanation, "A decree is preliminary
when further pr oceedings have to be taken before the suit can be
completely disp sed of. It is final when such adjudication completely
disposes of the suit." (He urged that these words were unambiguous
in meaning, and that being unambiguous, they must be given their
plain and obvious meaning, that it was clear that in determining the
three issues the learned judge had in fact made no less than four
adjudications, which, so far as he was concerned, had conclusively de-
termined the rights of the parties with regard to no less than four
matters in controversy between the parties in the suit, that each one
of these adjudications, if expressed formally, would be a decree, an

each one would be subject to appeal. The learned Advocate General,
while admitting that the adjudications had not been formally expressed,
further urged that on application made the court was under a clear
and unquestionable duty to give formal expression to its adjudications
by granting a preliminary decree, and that he had no discretion in the
matter. He therefore asked this court to direct the learned judge to
make a formal preliminary decree in respect of his findings on issues
1, 2 and 3.

The respondent was unfortunately not represented by an advo-
cate, and satisfied himself with formally opposing the application, and
asking that this court should direct the case to proceed in the High
Court in accordance with what he alleged to be the normal practice of
the court.

The Sudan Civil Justice Ordinance is based on that of India, and
not only have the main principles of the Indian Civil Procedure Code
been adopted, but in the main the acutal phrasing of the sections has
been adopted bodily from the Code. llt is therefore right and na-
tural that it is to the decisions of the High Courts of India and not to
English law that the courts of this country turn for guidance in the
interpretation of the Civil Justice Ordinance. Since the hearing of the
present application I have been fortunate in having the opportunity
of consulting the Indian Law Reports on the present matter. As these
Law Reports are 110t readily accessible, I shall, instead of merely re-
ferring to those decisions, make very extensive quotations from them.

The points raised by the learned Advocate General are not now
urged for the first time and his contentions would have been and were
in fact generally accepted by the learned judges of the courts of the
Presidency of Bombay until the year 1914, when the question of the
circumstances in which a preliminary decree may be granted was con-
sidered by a full bench of that court. Indeed it appears that in certain
respects the courts of Bombay before 1914 went further than the
learned Advocate General asks us to go, and the courts were pre-
pared to grant preliminary decrees extensively. It will be appropriate
for me to set out at some length the judgements which effected a revolu-
tion in the practice of the Bombay courts.

In the year 1914 in referring the case of Chanmalswami v.

Gangadharappa (1914) A.I.R. Bombay 149. to the Full Bench of the
High Court, Hayward 1.. a judge of distinction in the courts of Bombay,
delivered a judgement containing the following words:

"The plaintiffs sued the defendants for an injunction in respect
of certain religious ceremonies. The defendants raised a pre-
liminary defence that the matters in dispute were caste questions
outside the jurisdiction of the civil courts. The 'Original court
held that the matters were within the jurisdiction of the civil
courts . . . This court has been asked to hold on second appeal
that the decision was a preliminary decree and subject as such to
appeal, relying on the cases of Krishanii v. Maruti (1910) I.C.
966 and Siddanath v. Ganeth (1913) J 7 l.C, 687 in which it was
held respectively that the decision as to the defendant being an
agriculturist and decisions as to misjoinder, limitation and jurisdic-
tion were preliminary decrees inasmuch as they determined the
rights of the parties with regard to matters in controversy in the
suit within the meaning of section 2, Civil P.C.

"It has however been conceded that these decisions, if pressed
to their logical conclusion, would cover all interlocutory orders
passed in the suit, a result strongly condemned by the Privy Coun-
cilin the following term!>(~We are not aware of any law or regula-
tion prevailing in India which renders it imperative upon the
suitor to appeal from every interlocutory order by which he may
conceive himself aggrieved, under the penalty, if he does not do
so of forfeiting forever the benefit of the consideration of the Appel-
late Court. No authority or precedent has been cited in support of
such a proposition, and we cannot conceive that anything would
be more detrimental to expeditious administration of justice than
the establishment of a rule which would impose upon the suitor
the necessity of so appealing; whereby on the one hand he might
be harassed with endless expense and delay and on the other
inflict upon his opponent similar calamities,' in the case of
Maharajah Maheshur Singh v, The Bengal Government (1857-59)
7 M.l.A. 283 3 W.R. 45 (P.e.) under the old C.P.c. ... It is
necessary in all these circumstances to examine with particular
care all the provisions relating to preliminary decrees contained
in the Civil Procedure Code before coming to the conclusion that
a result so strongly condemned by the Privy Council has been
intended by the Legislature. No: doubt, such a result might be
deduced from a literal interpretation of the words of the definition,
'decree means the formal expression of an adjudication which
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit,' and of the explanation 'a
degree 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' in section 2
(2). But it would appear that a limited interpretation was con-
templated and that the adjudication determining the rights of the
parties was meant to be an adjudication after a complete bearing
of the case because it has been provided that only after such a
hearing should judgement be pronounced and be followed by de-
cree by section 33. (Section 92, Sudan Civil Justice Ordinance).

"This has been made clearer by the rules relating to the
hearing of the suit. It has been provided that preliminary
issues of law should be tried if those issues would dispose of the
suit by Order XV, Rule 2 (Section 73, Sudan Civil Justice Ordi-
nance), and that if the finding should not be sufficient for the
decision there should be a postponement of the hearing of the
suit, but that if the finding should be sufficient for the decision
there should be a postponement of the hearing of the suit, but
that if the finding should be sufficient for the decision judgement
should be pronounced, even though the hearing should not have
been fixed for final disposal of the suit by Order IV, Rule 3.
It has been further provided that only after the case has been
heard, should there be judgement and that there should be a
finding on each issue unless a finding on one or more issues
should be sufficient for the decision of the suit, and that the
judgement should be the basis of the decree .... The limited
interpretation contemplated has been indicated with sufficient pre-
cision by the following rules, which specify the cases in which
preliminary decrees mayor shall be passed in anticipation of
the prescribed final decrees. The cases are administration suits,
suits for the dissolution of partnership, account - suits and suits
for partition. . . . The only other preliminary and final decrees
provided are those in mortgage suits under 0.34 (See section 97
and Order VIII 7 (1) and Order X of the Sudan Civil Justice Ordi-
nance). Special forms for these preliminary and final decrees
have been prescribed ... It has then been provided that if a
preliminary decree should not give satisfaction there must be an
immediate appeal and that the questions thereby decided sho~ld
not be open to dispute on appeal from the final decree by section
97 (Section 169, Sudan Civil Justice Ordinance). But it has
been recognised that there might well be many interlocutory or-
ders not appealable as orders under section 104 and not
amounting to decrees. which might seriously affect the final de-

cision of the suit and it has been expressly provided that such
orders should be open to consideration on appeal from the de-
crees by section 105 (Section 170 (2), Sudan Civil Justice Ordi-
nance). It appears to me incontrovertible in view of all these
provisions that the limited interpretation indicated has through-
out been contemplated and that the only preliminary decrees sanc-
tioned have been exhaustively enumerated, subject of course to
extension by further rules lawfully framed, and that in all other
cases the final determination of the suits has been required before
preparation of decrees. This limited interpretation has moreover
the merit of avoiding the evils so strongly condemened by the
Privy Council and there would be a strong general presumption
against any other interpretation out of respect for the Legislature."

In his judgement referring the case to the Full Bench, Beaman J ..
delivered a judgement following very much the same argument as Hay-
ward J., and in the last paragraph of his judgement after pointing out
that the decisions of issues, like any decision as to the admissibility
of documents or as to procedure, "are a means to an end, and the
end is the right or rights claimed, and to be or .not to be decreed," he
proceeds:

"The far wider construction put upon the words in this court
is, in my opinion uncalled for and will lead in practice to the
most disastrous consequences. The conduct of civil business is
already slow enough, but how can it ever be finished if the trial
judge has to frame twenty preliminary 'decrees' in the course of
every trial and to open the door to twenty successive appeals
before any decisions on the merits has been given? Upon this
subject I may be permitted to call attention to the weighty words
of their Lordships of the Privy Council in Maharajah Maheshur
Singh v, The Bengal Government. This is not a mere question
of words, empty dialetic, but of great and far reaching practical
importance. I believe that this court stands alone in the ex-
tension it bas given to the meaning of the term 'preliminary de-
cree' and in view of the steadily increasing number of appeals
from what are called preliminary decrees, and may fairly be said
to have been held to be preliminary decrees by this court, and
the resultant delays, expenses and harassments to which suitors
are being subjected, it is very desirable that the whole question
should be fully considered and authoritatively settled by a full
bench."

The full bench of the High Court of Bombay affirmed the judge-
ments of Hayward J. and Beaman J. and overruled the previous de-
cisions of the High Court of Bombay on which the appellants relied.
The decision of the full bench was subsequently re-affirmed.

The question of preliminary decrees again came before the High
Court of Bombay in the case of Dattatraya v, Radhabai A.l.R. (1921)
Bombay 220 (60 I.C. 885) when the judgement of the court was
delivered by Macleod C.J. He stated as follows:

"Unfortunately, the plaintiff applied to the court to draw up
a decree on the finding on the first issue (namely that the de-
fendant was an agriculturist) and a decree was drawn up. An
appeal was filed against that decree which was admitted by the
district judge. The appeal was dismissed, the learned judge being
of the opinion that the defendant was rightly held to be an agri-
culturist. I think he was wrong in holding that an appeal
lay ....

"The importance of the question arises from section 97 of
the Code (Section 169 Sudan Civil Justice Ordinance) which en-
acts that if a party aggrieved by a preliminary decree does not
appeal from such decree he shall be precluded from disputing its
correctness in any appeal which may be preferred from the final
decree."

(After dealing shortly with the position under the Civil Procedure
Code of 1882, he proceeds.)

"In section 2 of the Code of 1908, decree was defined so as
to bring preliminary or interlocutory decrees within the definition
of a decree, but the only change in procedure introduced by the
definition of decree in section ~ combined with section 97 was in
respect of the right of an aggrieved party to appeal from a pre-
liminary decree. The right which he had before to wait until the
final decree was passed and then appeal from both the prelimi-
nary and final decrees was taken away. But the impression has
gained ground that the kind of preliminary decrees which can be
passed has been indefinitely extended by. tile Code of 1908.
Constant applications are made to the judges in the mofussil
courts to embody in the form of decrees judicial pronouncements
which arc not judgements according to the Code, OIl the ground
that the aggrieved party may be debarred from raising the ques-
tion in an appeal from the final decree. This apprehension may

be genuine in some cases but too often is merely the cover for de-
liberate obstructions to the final deci sion of the suit. The object
is easy of attainment. The judge is asked to draw up a decree
on the ground that he has decided something which conclusively
determines the rights of the, parties with regard to one of the mat-
ters in controversy in the suit. The judge declines. An applica-
tion is made to compel him to draw up a decree. Whether suc-
cessful or not the hearing of the suit is delayed for months. Jf
the judge consents there is at once an appeal. In this way litiga-
tion which is in any event sufficiently protracted can be indefi-
nitely prolonged.

"In my opinion the above impression is entirely erroneous
and has arisen chiefly from the failure to observe the rules of pro-
cedure laid down by the Civil Procedure Code 1908 with regard
to the institution and hearing of suits. The solution of the ques-
tion before us is to be found not in any of the numerous cases
which deal with the question, but by a careful consideration of
those rules which with some minor alterations re-enact the cor-
responding sections of the Code of J 882. They prescribe when
and in what circumstances the court is to pronounce judgement and
it is only when a judgement has been pronounced in conformity
with those rules that it can be embodied in a decree.

"TIle rcal question therefore seems to me to be not what is
or what is not a preliminary decree, but when may a trial judge
pronounce a judgement which has to be embodied in a decree.
Then the tage of the case at which judgement is pronounced will
determine whether the decree is preliminary or final."

(After a detailed examination of the rules of the procedure, he
states: )

"It is only when the finding on an issue is sufficient for the
decision of the suit or a part of the suit that the court may pro-
nounce judgement. When the finding is not sufficient for the de-
cision the suit must be postponed for further hearing. Under
section 33 (Section 92, Sudan Civil Justice Ordinance) the court
alter the case has been heard shall pronounce judgement and on
such judgement a decree shall follow. Order XX (See Chapter
XII, Sudan Civil Justice Ordinance) deals with judgement and
decree. Before Rule 12 of that order there is no provision in the
Code for any other judgements except (I) those which are given

at the end of the hearing (under section 33) and (2) those which
decide the case or presumably a part of the case by findings on
certain issues only. Order XX. rules 12 to 16 and Order XXXIV
2, 4, and 7 deal with certain classes of suits in which there can be
.an adjudication which though it determines the rights of the
parties with regard to the matter in controversy in the suit does
not completely dispose of the suit. They enable the court to pro-
nounce a judgement which must be embodied in a decree, before
the end of the suit, but they carefully prescribe on what points
judgement shall be given ...

"The principle remains the same. The judgement should
ordinarily come at the end of the case. But there are cases where
although the court can decide all the questions relating to the
rights and liabilities of the parties, the details of the decree have
to be ascertained by a further inquiry, or time is allowed to a de-
fendant before the decision becomes final. . . .

"The opinion I have expressed on this question in no way
affects the rights of an aggrieved party to obtain relief when ap-
pealing to a higher court. I have only made it clear when he
must appeal and I have shown that he is not debarred from ap-
pealing at the end of the case from certain findings during the
hearing of the cases which merely decide that the case must pro-
ceed or which decide questions without disposing wholly or par-
tially of the case. lThis will put an end to the applications which
are constantly being made to the High Court to compel the trial
courts to draw up decrees based on such findings instead of wait-
ing until the end of the case, thus enabling a party to prolong the
hearing of the suit for an indefinite time and paralyzing the ad-
ministration of justice. One thing is perfectly clear, and that is
that a party is an agriculturist cannot conclusively determine the
rights of the parties with regard to any or all of the matters in con-
troversy in the suit. Nothing is said in the Code about a 'pre-
liminary issue,' but a decree is preliminary when a further pro-
ceeding is to be taken before the suit is completely disposed of.
It follows then, in my opinion, that the judge should never accede
to an application to draw up in the form of a decree a finding on
the question whether a person is an agriculturist or not. Un-
doubtedly that is an issue which is the first issue to be tried in the
case, and a decision may be given on it, but it by no means follows
that because that is the first issue to be tried therefore it is a pre-

liminary issue on which a decree can be drawn up. The whole
case must be decided first before the judgement can be pro-
nounced. There will then be a judgement deciding the rights of the
parties with regard to all or any of the matters in controversy in
the suit, and then it will rightly be the subject of a decree."

Let it not be tbought that any c~ital can be made on behalf of
the applicant from the usc of the phrase "decision of part of the
case." It is manifest from the full judgement that the phrase does
not refer to the decision of issues which do not dispose of the
particular claim which is being dealt with by the court.

I now refer to the leading case on preliminary decrees in the
Calcutta High Court (Kamini Debi v. Promotho (1915) A.I.R. Cal-
cutta) in which the judgement of the High Court was delivered by Sir
Asotush Mookcrjec. The following is an extract from his judgement:

"Clause 2, s. 2, Civil P.C. defines the term 'decree' to mean
'the formal expression of 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 has not
been that in the case disputed before us that there is no formal
expression of adjudication by the court of first instance. But the
defendant is in no way to be blamed for this circumstance. . . .
If the expression 'matter in controversy' is understood in its widest
possible sense the argument advanced on behalf of the appellant
may be supported. But the question remains whether the ex-
pression should be understood in this comprehensive sense. On
behalf of the respondents, it has been argued that the expression
'matter in controversy in the suit' refers to the subject matter of
the litigation and that if this view were n6i-;doptcd, every ques-
tion in dispute between the parties in the course of litigation may
be deemed to fall within the expression 'matter in controversy in
the suit.' In our opinion, the view put forward on behalf of the
appellant is unsound and should not be accepted, though it is
supported by the decision in Sidhanath v. Ganesh Govind (1912)
37 Bombay 60 (a Bombay judgement delivered before 1914).
. . . With all respect for the learned judges who decided that
case, we are unable to accept the interpretation they put on the
expression 'matter in controversy in the suit: The result of this
interpi etation is that the parties would be bound in view of sec-
tion 97 of the Code, (i,e., if the decision is given formal ex-

pression) to challenge by way of immediate appeal the decision
of the court upon everyone of the points in dispute between them
in the course of the litigation, so that the trial of the suit might
be interrupted from time to time and might ultimately be ex-
tended over many years. We are not prepared to hold that this
could ever have been intended by the legislature. Besides this,
if the decision of the court upon each of the matters in dispute is
deemed a preliminary decree, there must be a number of pre-
liminary decrees in the suit.

"But as was pointed out in the case of Bharatendu v. Yacub
Hussein (1913) 35 Allahabad 159 18 I.C. 701 the intention of
the legislature appears to have been that there should only be one
preliminary decree in the suit to be followed by one final decree.

. . . . The cases where the legislature contemplated the prepara-
tion of a preliminary decree are specified in Rules } 2 to 1 S. 0.20
of the Code; it is not disputed that the case before us is not com-
prised within any of those rules. It is further clear that the pre-
liminary decree ascertains what is to be done. while the final
decree states the result achieved by means of the preliminary
decree."

In the case of Shib Sharan Sha v. Ianaki Nath Day (1913) (Cal-
cutta) in which an application was made for appeal against the find-
ing on an issue which did not dispose of the suit, Chitty J. and Terman
J. gave judgement as follows:

"We can only say that in our opinion this view of the district
judge was clearly erroneous. If such a contention should prevail
there might be as many appeals in every suit as there are issues.
The suit has not in any way been finally decided and it should
be allowed to continue."

The leading case on the subject of preliminary decrees in the
Allahabad High Court is that of Parsotam Rao Tantia v. Radha Bai
(1912) in which the learned Chief Justice in delivering judgement
stated:

"What the definition means is that a court may pass a pre-
liminary decree in certain circumstances which is appealable and
a final decree subsequently. ]t could never mean that the de-
termination of each issue would give rise to an appeal and that
such determination would be deemed to be a decree."

ourt of the Punjab in the case of Kanthi Natlt v.

Nat/III Ram (19 I I) Rattigan J. in delivering the judgement of ,the court
stated:

"1 am free to admit that the terminology of this section
2 (2) is far from clear and that the words used by the legislature
are wide and (if I may say so) rather vague, but I do not think
that the definition of decree was intended to include an interlocutory
decision in ordinary suits upon each and every point in controversy
between the parties. even in those cases where the decision upon
any such question is embodied in a separate and distinct -order
passed during the pendency of the proceedings . . . I n my opinion
a preliminary decreeproperly understood is passed only in those
cases in which the court has first to adjudicate upon the rights of
the parties and has then to stay its hand for a time until it is in a
position to pass a final decree in Lie suit. This happens in suits
for administration, for partition of property, for dissolution of
partnerships, for foreclosure or sale of mortgaged property and
by a principal for accounts from his agents."

I shall refer to one more leading case. Taleb Ali v. Abdel Aziz
(1930) Calcutta 57 Cal. 1013 (see Mulla, p. 9) in which the
judgement, subsequently affirmed by the Full Bench of the Calcutta
High Court, was delivered by Rankin C.J. at the present time a
member of the Judicial Committee of the Privy Council, in which he
stated the final decree (in a case in which a preliminary decree is
granted) is in its nature dependent and subordinate, because it is a
decree which has been passed as a result of proceedings directed
and controlled by the preliminary decree and based thereon. The
function of the final decree is merely to restate and to apply with
precision what the preliminary decree has ordained.

Such is the remarkable unanimity among the various High Courts
in India, and although this court is in no way bound by the decisions
of the High Courts in India, it is right that this court in interpreting
the Civil Justice Ordinance should avail itself of the learning and
experience of their judges. My investigations, which were lengthy.
disclosed no recent decisions which have overruled the decisions
which I have quoted. To the best of my knowledge they all siand
as leading cases today.

Now let us turn to the Civil Justice Ordinance, the child of the
Indian Civil Procedure Code. The procedure to be followed is clearly

laid down. Under section 57 of the Civil Justice Ordinance, where
the plaint is presented in proper form, the court shall, if it does not
reject the plaint under section 56. issue a summons to the defendant
to appear. The court shall determine at the time of issuing the
summons whether it shall. be for the settlement of issues only or for
the final disposal of the suit: Order I, Rule 2. Sections 72 and 73
deal with the settlement of issues. At the first hearing of the suit
the court sha11 proceed to frame and record the issues on which the
right decision of the case appears to depend (section 72 (I)). Where
-issues of fact and law arise in the same suit. and the court is of
the opinion that the case or any part thereof may be disposed of
on issues of law only, it shall try those issues first, and for that purpose
may if it thinks fit postpone the settlement of the issues of fact until
after the issues of law have been determined (section 73, Civil
Justice Ordinance). The rules regulating the hearing of the suit are
laid down in Order VII. After the suit has been heard the court
shall pronounce its judgement (section 92). The judgement shall be.
in writing and shall state: (a) the points for determination, (b) the
decision thereon, and (c) the reasons for the decision (section 93).
TIle decree shall contain the number of the suit, the names and
descriptions of the parties. and shall specify clearly the relief granted
or other determination of the suit, and shall also state the amount of
costs payable by one party to the other (section 94). It has been
specially provided by section 97 that in any suit the court may,
before passing its final decree, pass a preliminary decree directing
such accounts and inquiries to be made as It thinks fit. This cor-
responds to certain sections of the Indian Code. it is manifest that
this preliminary decree can only be passed after the suit has been
heard. This section applies in certain classes of suits in which there
can be an adjudication which, though it determines the rights of the
parties with regard to the matter in controversy, docs not completely
dispose of the suit, those cases referred to by the learned Chief
Justice of the High Court of Bombay in which "although the court
can decide all the questions relating to the rights and liabilities of
the parties, the details of the final decree have to be ascertained by a
further inquiry." There are also special provisions regarding mortgage
suits and partition suits, in which likewise the court may make an
adjudication which decides all the questions relating to the rights and
liabilities of the parties, embody it in a preliminary decree. and later
make a final decree. "restating and applying with precision what the
preliminary decree has ordained." By section 169 it is provided that.
where any party who is aggrieved by a preliminary decree does nor

strongest representations to the legislature for the amendment of the
law, so as to bring it into line with Indian practice and to safeguard
the courts of this country from following a procedure which could
only result in the wanton harassment by unnecessary delay and expense
of litigants, and especially poorer litigants, at the hands of richer
litigants, to whom the costs of continual appeals would be a matter
of little concern, provided they could attain their immediate ends.
I can myself imagine no procedure likely to lead to greater abuse
than one under which the hearing of a suit can be repeatedly inter-
rupted by one or other of the parties applying for preliminary decrees
in respect of findings on issues which are decided against him but
which do not dispose of the suit, lodging a succession of appeals
and so forcing his opponent to incur all the costs of appealing as a
respondent, and to suffer needless delay. Nor does the matter end
here. Even if a defendant loses on certain of the earlier issues, he
may well succeed on later issues and obtain a decree in his favour.
In this event, all questions of appeal to this court are avoided.
Furthermore, on this basis, it is to be presumed that, when a finding
is made which does not dispose of the suit, the successful party,
like the unsuccessful party. can apply if he wishes, for the finding
to be embodied in a preliminary decree and so force his opponent
immediately to appeal. under the penalty that if he does not do so
he will be debarred under section 169 of the Civil Justice Ordinance
from appealing from such finding at the hearing of an appeal from
the decree given at the determination of the suit. Could any more
effective method be devised for the harassment of litigants, especially
poorer litigants, and for the paralyzing of the administration of justice?

The alternative application of the learned Advocate General asks
this court to treat these findings on issues I, 2 and 3 as orders
subject to revision. The word "order" is defined in section 4 (15)
as "the formal expression of any decision of a Civil Court which
is not a Decree:' It is obvious that the findings on these issues
are not the formal expression of decisions within the meaning of the
section. It was argued that the learned judge would, if requested
so to do, be under an obligation to give formal expression to these
findings, and so at least attempt to make them into orders. Not
only am I unaware of any such obligation, but such a procedure
would in my view be entirely improper. If it were held that such
findings are orders or can be converted into orders by a procedure
for which there is no provision in the Civil Justice Ordinance, the
anomalous position would arise that these findings would be dealt

rits by a Revisional Court consisting of two judges,
instead of by a Court of Appeal consisting of three judges. It is
not tbe intention of the Code that by such circuitous means as these
the parties shall be deprived of the right of having findings on issues
in appealable cases dealt with by a full Court of Appeal consisting
of three judges. It is contrary to the whole procedure laid down by
the Ordinance regarding appeals, which jealously guards the rights
of the parties at the hearing of appeals. as, e.g., in section 170 (2),
which reproduces the relevant section of the Indian Code. Is this
court to be asked to import into the Ordinance such an obligation on
the judge, and thereby to seek to institute a procedure which sets
at nought one of the major purposes of the procedure laid down for
dealing with appeals? This second application in my view should
likewise be dismissed, and I trust that this case will now be allowed
to follow the normal procedure for the hearing of suits in this country
under tbe Civil Justice Ordinance.