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Judgment
Basil Scott, Kt., C.J.—In this case the Subordinate Judge has given a decision upon six issues in the case, one of them being an issue of misjoinder, another limitation, and the third of jurisdiction, and after finding on these issues directed that the parties should be allowed to adduce evidence on the remaining issues, which were issues of accounts. He was then asked to draw up a preliminary decree in accordance with his findings. This, however, he declined to do.
We are of opinion that in so declining he committed a material irregularity in the exercise of his jurisdiction. The decision of the issues to which I have referred conclusively determined the rights of parties regarding some matters in controversy so far as his Court was concerned, the decision on each of those issues, therefore, was sufficient to constitute a preliminary decree.
The defendant has a right to appeal from a decision of the Court amounting to a preliminary decree, but he can only appeal if the decree is existent in a formal shape. This we decided in Bai Divali v. Vishnav Manordas (1909) 11 Bom. L.R. 1326. It is the duty of the Court where it is applied to after the passing of a preliminary decree to have the decree drawn up so as to enable the party aggrieved to appeal.
It is suggested on behalf of the plaintiff that this application is made solely for the purpose of delay, but the defendant in order to rebut that suggestion is willing to be put on terms with regard to the time within which he shall file his appeal from the preliminary decree.
We order the lower Court forthwith to draw up a preliminary decree upon the questions decided in the issues dealt with in its judgment of the 7th of February 1912, the defendant undertaking to prefer his appeal, if any, to this Court within one month from the drawing up of such decree.
Costs costs in the appeal if preferred.
If no appeal is preferred, costs costs in the cause.