Ayappa Mudeliar and Padmasawmi Anni vs Gopalaswamy Mudeliar and Others and Myappa Mudeliar and Others

A preliminary objection is taken in these three appeals that no appeals lie on the ground that no decree has been passed by the District Judge.

The suits were instituted in the District Court, the object of which was to ask the Court to construe certain testamentary dispositions and for the

framing of a scheme in order to carry out certain gifts to charities and for other purposes ancillary to the administration of the estate of the

deceased testator. Various issues were framed and, we may take it, that Mr. Oldfield, the District Judge, has recorded his findings on most of

these issues; he has not, however, recorded any finding on some of them. Nor has he drawn up any formal document in the nature of a decree.

What he says in the last paragraph of his judgment is this: ''It is improbable that I shall frame the final decree in this suit. I, therefore, place on

record my conclusion that costs, so far as they are separately ascertainable, should be paid by 1st defendant in respect of the trial of the issue 15 in

O.S. No. 3 and issue 14 in both suits, and that the other costs should be defrayed from the trust property."" He adjourned the suits to a future date

in order that the parties might file draft schemes in accordance with the conclusion which he arrived at on the issues dealt with by him. The question

for our decision is, whether there is a decree which is appealable u/s 96 of the Civil Procedure Code, which lays down that an appeal shall lie from

every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. The

point has been decided in Rai Divali v. Vishniv Manordas 11 Bom. L.R. 1326 and we entirely agree in the conclusion of the learned Judge of the

Bombay High Court, that unless there is a formal expression of adjudication determining the rights of parties, there can be no decree from which an

appeal can lie. That the CPC contemplates both judgments and decrees, there cannot be the least doubt. Order XX is perfectly clear on this point,

showing that the decree must be something separate and distinct from the judgment. In the first the final adjudication of the rights of the parties is to

be embodied, while the judgment is to contain the reasons for such adjudication. It is sufficient to refer to some of the provisions of the Code which

make this quite clear. Rule 3 lays down how a judgment is to be signed and dated; Rule 4 says what a judgment should contain; Rule 6 says that

the decree Bhall agree with the judgment and states the particulars which are to be embodied in the decree; Rule 7 directs that the decree shall

bear the date on which the judgment was pronounced; Rule 8 provides that, where a Judge has vacated office after pronouncing judgment but

without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor.

The learned Vakil, who appeared for the appellants, contends that one and the same document may be regarded both as judgment and decree

and in support of his contention, he relies on the ruling of the Judicial Committee of the Privy Council reported in Bhup Indar Bahadur Singh v.

Bijai Bahadur Singh 10 M.L.J. 290. That case, in our opinion, has no application. There, the question was, whether an order relating to mesne

profits passed in execution of a decree was appealable u/s 244 of the CPC (1882) and their Lordships held that it was, as it contained a final

adjudication of the rights of the parties as far as mesne profits were concerned and it, therefore, fell within the definition of a decree as given in

Section 2 of the Code of 1882. There the question as to what is or is not a decree in a suit was not before their Lordships. The definition of a

decree, as given in the present Code, requires that it should be a formal expression of adjudication. That may not mean that the expression of the

adjudication should be in any particular form, but it apparently means that a decree should embody in a formal manner the adjudication by the

Judge of the rights of the parties. The reason for requiring such a judicial record apparently is that the question ought not to be left open what

exactly has been adjudicated upon. In this case, for instance, it seems to us it would be difficult to ascertain what exactly is the decree if we are to

gather it from the judgment of the learned Judge as far as it has gone. Apart from this, it must be pointed out that certain important issues have not

yet been decided; for instance, the issue relating to the income of the property, which is most essential for the framing of the scheme for the

charities endowed by the Will. We, therefore, hold that there is no decree yet, and the appeals, therefore, fail and are dismissed, Nos. 179 and

222 of 1909 with costs and Appeal No. 221 of 1909 without costs.