Rajah Damara Kumar Thimma Nayanim Bahadur Varu vs Bukkapatnam Venkata Charlu and Others

We are of opinion that the appellant in the present case did appeal against the decree, within the meaning of Section 591 of the CPC (Act XIV

of 1882) though the only reason for the appeal was the erroneous decision in regard to the interlocutory order. But the terms of the section, in our

opinion, allow such an appeal.

The decision of the Subordinate Judge as to the construction of Section 591 of the CPC is, no doubt, in accordance with the decisions in Sher

Singh v. Diwar Singh ILR (1900) A. 366 and Causannel v. Gomes ILR (1899) M. 260. But the former is based on an obiter dictum in Sher Singh

v. Diwar Singh ILR (1900) A. 366 and the decision in Causannel v. Gomes ILR (1899) M. 260 is doubted in Godavari Samulu v. GajaPathi

Narayana Deo ILR (1889) M. 494 wherein it is pointed out that it is doubtful if it can be reconciled with the earlier decision reported in

Sankaralinga Mudali v. Ruthnasabapathy Mudali.I.L.R. (1897) M. 324 The decision in Googlee Sahoo v. Prem Lall Sahoo ILR (1881) C. 148

and Savitri v. Ramji ILR (1889) 14 B. 232 are directly in favour of the appellant''s contention, and they are, we think, in accordance with the

language of the section and the principle on which it is based as explained by the Privy Council in Maharajah Mohesur Singh v. The Bengal

Government (1859) 7 M.I.A. 283 : "" We are of opinion that this objection cannot be sustained. We are not aware of any law or regulation

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 so do, of forfeiting for ever the benefit of the consideration of the appellate 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 the 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. We believe there have

been very many cases before this tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders,

though not brought under their consideration until the whole cause had been decided, and brought hither by appeal for adjudication.''''

We, therefore, set aside the decree of the Subordinate Judge and remand the appeal to the District Judge for decision on the merits. Costs will

abide the event.