M.C. Chagla, C.J.@mdashThis is an appeal from a judgment of Mr. Justice Desai and it came to be passed under the following circumstances.
The suit out of which. this appeal arises was filed for damages for breach of a contract. Mr. Justice Tendolkar heard the suit, held that there was a
breach, and also determined the date of the breach, and then referred, the suit to the Commissioner to ascertain the damages on that basis. The
Commissioner heard the reference, ascertained the damages, and exceptions were filed to the Commissioner''s report, and Mr. Justice Desai after
disposing of the exceptions passed a decree on. November 1, 1954, for damages. The present appeal has been preferred on December 8, 1954,
and one of the points raised in this appeal is that Mr. Justice Tendolkar was in error in determining the date of the breach as June 14, 1951.
2. Mr. K. T. Desai raises a preliminary objection that it is not open to the appellants to raise that contention inasmuch as that contention was
disposed of by Mr. Justice Tendolkar by his judgment, that an appeal against that judgment is time-barred, and it is not open to the appellants to
raise that contention in the appeal against the judgment of Mr. Justice Desai. The short question that we have to decide on this appeal is whether
the judgment of Mr. Justice Tendolkar of February 18, 1952, constitutes a preliminary decree within the meaning of the Civil Procedure Code. u/s
97:
Where any party aggrieved by a preliminary decree passed after the commencement of this Code 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.
The appellants were undoubtedly aggrieved by the finding of Mr. Justice Tendolkar that they had committed a breach of the contract. They were
also aggrieved by the fact that the learned Judge had fixed a particular date as the date of the breach. Therefore, if these two decisions of Mr.
Justice Tendolkar are embodied in a preliminary decree, then by reason of Section 97 the appellants should have appealed against the preliminary
decree passed by Mr. Justice Tendolkar, and if they did not choose to do so, they are bound by that judgment and they cannot dispute it now,
when they are appealing against the final decree. ""Decree"" is defined in the Code by 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 114, 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.
Then there is an explanation to this section:
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.
3. Sir Jamshedji concedes that the decision of Mr. Justice Tendolkar that there was a breach constitutes a preliminary decree and it is not open do
the appellants to challenge that finding, they not having done so within time and having only appealed against the final decree passed by Mr. Justice
Desai. Order XX, Rule 16, makes it obligatory upon the Court to pass preliminary decrees in cases referred to in that rule, and it may be
conceded that this particular suit does not fall within the ambit of that rule. But there is nothing to prevent a Court from passing preliminary decrees
in other suits. Under Order XX, Rule 16, the Court must pass a preliminary decree. In other cases it is optional for the Court whether to pass a
preliminary decree or not. In this very ease it was open to Mr. Justice Tendolkar not to refer the suit to the Commissioner, to take evidence himself
with regard, to damages, and pass a decree after he had ascertained the damages. But what he did was, he gave his decision with regard to the
breach and the date of the breach, and directed the Commissioner to ascertain the damages which was further proceedings to be taken within the
meaning of the expression ""preliminary decree"" before the suit could be completely disposed of. Sir Jameshedji''s contention is that the finding of
the learned Judge as to the date of the breach is merely a finding on an issue, that it is a step taken by the Court for the purpose ultimately of
deciding what the quantum of damages is, and till the quantum of damages is determined, the finding as to the date of the breach cannot possibly
constitute a preliminary decree. There is no doubt that Sir Jainshedji is right that when a Court merely gives a finding on an issue, the finding
ordinarily does not become appealable and a party aggrieved by that finding cannot appeal from that finding. But it is equally clear that if a finding is
embodied in a decree, then the decree becomes appealable. Section 96 of the Code makes every decree appealable. It is true that on the Original
Side we are governed by cl. 15 of the Letters Patent and it is that clause that we have got to consider in order to decide whether any decision
constitutes judgment which would make a decision appealable. But there cannot be the slightest doubt that even under cl. 15 every decree is
appealable. Clause 15 makes many decisions which would not be appealable under the Code appealable under that clause. And if the decision of
the Judge constitutes a decree, obviously and without the slightest doubt that decision would become appealable. If Mr. Justice Tendolkar had
merely given his finding on an issue with regard to the date of the breach, then it would have been open to Sir Jamshedji to contend that it was not
an appealable finding. But the position here is that this finding has been embodied in a decree. What Mr. Justice Tendolkar has done is to pass a
decretal order of reference. If the decision of Mr. Justice Tendolkar has been embodied in a decree, then under the Code a decree can only be
either final or preliminary. It cannot be suggested that the decree passed by Mr., Justice Tendolkar is final. Therefore, the inevitable conclusion is
that the decree passed by Mr. Justice Tendolkar was a preliminary decree. It is difficult to understand Sir Jamshedji''s contention that part of the
decree to the extent that it relates to the breach is appealable, but part of the decree to the extent that it relates to the date of the breach is not
appealable and could only have been appealed against when the final decree was passed by Mr. Justice Desai. If a Court passes a decree,
whatever is embodied in that decree is appealable. He may appeal against a part of it and not against the whole of it, but the whole of it and every
provision in it is appealable. Therefore, if the appellants did not choose to appeal against the finding of Mr. Justice Tendolkar that the date of the
breach was June 14, 1951, the result was that they did not appeal from a part of the preliminary decree which was appealable. If that be the true
position, then Section 97 comes into play and the result of the appellants not appealing against a part of Mr. Justice Tendolkar''s decree is that they
are bound by that decision and they cannot question the decision in the final decree passed by Mr. Justice Desai.
4. A reference was made to the practice in this Court, but our attention, has not been drawn to any judgment relating to this point. It may be that in
some cases appeal was only preferred against the final decree and no objection was taken u/s 97. But the failure to take objection does not
necessarily constitute either a practice to that effect or an implied decision by the Court that that practice was in conformity with the Code. But our
attention has been drawn by Mr. Desai to a judgment of Sir Norman Macleod, C.J. and Mr. Justice Fawcett in Dattatraya Purshottam v.
Radhabhai ILR (1920) 45 Bom. 627 : 23 Bom. L.R. 92 the learned Chief Justice says referring to suits under Order XX, Rule 16:
The suits referred to above are the most common in which preliminary decrees can be passed. I may also mention suits for damages in which the
plaintiff establishes his right to receive damages but an inquiry is necessary as to the amount before a final decree can be passed. The principle
remains the same. The judgment should ordinarily come at the end of the case. But there are cases where although the Court can decide all
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 defendant before the decision becomes final.
In this case the plaintiff has established his right to receive damages and all that is necessary is an inquiry as to the amount before the final decree
can be passed. Sir Jamshedji says that the plaintiff has established his right to receive damages by proving the breach, but his right has nothing to
do with the date of the breach. That'' is obviously untenable. The right that the plaintiff obtained by the judgment of Mr. Justice Tendolkar was not
only the right to receive damages but the right to receive damages assessed on the basis that the date of the breach was a particular date. In our
opinion, although these observations might not have been necessary for the decision of the matter before Sir Norman Macleod, with respect, we
are in agreement with these observations and in our opinion these observations do apply to the question before us.
5. Sir Jamshedji has then asked us to condone delay u/s 5 of the Limitation Act. It is difficult to understand how the facts here would constitute
sufficient cause, which alone would entitle us to condone delay. It is not a case where under a mistake of law a party is prosecuting the litigation in
a wrong tribunal. This is clearly a case of ignorance of law and ignorance of law can never constitute sufficient cause. A party cannot say that
because of ignorance of law he failed to assert his right in time. If he failed to assert his right in time, then his remedy must be held to be barred and
ignorance cannot constitute sufficient cause to entitle the Court to condone delay.
6. In our opinion, therefore, to the extent that this appeal raises the question of the date of the breach, it is not maintainable by reason of the
provisions of Section 97 of the Civil Procedure Code.