Full Judgment
Hiremath, J.
1. Heard. Admitted on the following substantial question of law:
Whether dismissing the suit even on preliminary issue is only an appealable order and not a Decree?
2. Heard on merits as well by consent of both the Counsel on record. The original suit was filed by the appellants-plaintiffs for as many as four reliefs, the first and the third being one for declaration of title of the' plaintiffs over the suit properties and for permanent injunction restraining the defendants from interfering with their possession. The plaintiffs also added in their prayer for correction of Hissa Survey Map and other land records and rectification of the entries in the Record of Rights. The fourth one was an omnibus prayer praying for any other relief. The trial Court framed the issue of maintainability of the suit in view of the provisions of the Karnataka Land Revenue Act among other issues but disposed of the suit on hearing on issue No.2 as a preliminary issue. Because the prayer is one for correcting the entries in the Record of Rights the Court held that the suit is not maintainable under Section 61 of the Karnataka Land Revenue Act of 1964. Consequently the entire suit came to be dismissed. The plaintiffs preferred appeal before the Civil Judge's Court at Bidar and that Court observed that the appeal is not maintainable as the appeal lies only against a Decree and not an order and hence dismissed the appeal. The correctness of that order is now challenged.
3. It is unfortunate that the learned Civil Judge failed to see that the entire suit was dismissed after he gave a finding on the preliminary issue as to the bar of suit under the provisions of a particular statute, namely, the Karnataka Land Revenue Act 1964. Rule 2 was added to Order XIV of the Code of Civil Procedure by the Amendment Act of 1976. It reads thus:
'2. Court to pronounce judgment on all issues:-
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule(2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue'.
It could thus be seen that Sub-rule (2) of Rule 2 has now given power to the Court to try an issue as a preliminary issue and if in the opinion of the Court the suit could be disposed of on an issue of law only it may dispose of the suit on that issue only if the finding rendered affects the very institution of the suit. It is thus clear from the Judgment of the trial Court that it came to the conclusion that Section 61 of the Karnataka Land Revenue Act is a bar to the institution of the suit in a civil Court and therefore it is not maintainable. Under Section 96 C.P.C. an appeal shall tie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. It is now required to be seen if the disposal of the suit on a finding on a preliminary issue of law is a decree appealable under Section 96 CPC or only an appealable order as the learned Civil Judge seems to have found. Section 2(2) CPC defines 'decree' thus:
''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 144, 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.
Explanation:- 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'.
Order XLIII specifies which are the appealable orders. Disposal of a suit on a preliminary issue under Order XIV Rule 2 CPC does not find place, among the orders specified in Order XLIII.
4. This Court in the case of HONNAYYA v. YELLAWWA, 1979(2) KLJ 34 had occasion to deal with Section 96 CPC in a matter arising out of a finding rendered by the trial Court. In that suit the plaintiff had instituted the suit for injunction and the following three issues were raised in that suit:
(1) Does plaintiff prove that he is in lawful possession and enjoyment of the suit land?
(2) Does plaintiff further prove that the defendant interfered with his possession and enjoyment since 2.4.1969?
(3) To what relief the parties are entitled?
The trial Court held that the plaintiff was in possession of the suit land but dismissed the suit holding that he had not established any interference on the part of the defendant. The defendant was aggrieved by the finding on the first issue against him. He went up in appeal. The first appellate Court allowed the appeal and set aside the finding on issue No. 1 rendered by the trial Court. In the second appeal a question arose whether such an appeal could lie only on a finding rendered. It is obvious that the suit itself was dismissed though the finding was against the defendant. This Court relied on a Decision of the Supreme Court in the case of GANGA BAI v. VIJAY KUMAR, : [1974]3SCR882 in which the Supreme Court pointed out that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under Rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. This Court thus found that a mere finding on an issue in a suit where suit itself is dismissed cannot be construed as a decree. When the suit itself is dismissed a finding on an issue even if it is against the defendant will not be final against him. It will not ad as res judicata. That being so a mere finding on an issue cannot be considered as a decree.
5. In the instant case the learned appellate Judge did not apply his mind to the scope of Section 96 CPC as well as to the fact that by this adjudication so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to the matter in controversy, namely, to the very maintainability of the suit. The facts of the instant case do not embrace the facts of the case before this Court in the case of Honnayya v. Yellawwa (supra). The trial Court decided the suit itself on the preliminary issue of law as provided under Order XIV Rule 2(2)(b) CPC and found that the suit itself is not maintainable. As the suit has been finally disposed of on the finding of this issue dismissal of the suit amounts to a decree. The learned Civil Judge went wrong in holding that no appeal lies against the order passed by the trial Court forgetting that the order amounts to a decree. The learned Counsel for the respondent on record could not support the order of the learned Civil Judge. The question of filing a revision does not arise as the order of the trial Court clearly amounts to a decree and Section 96 CPC is the specific provision applicable. The Appeal therefore has to be allowed and it is allowed setting aside the order of the first appellate Court and the appeal is remitted to the Court of the Civil Judge, Bidar to dispose of the appeal on merits within two months from the date of receipt of a copy of this order. The parties shall appear before that Court on 16.8.1993 and assist the Court in expeditious disposal of the appeal. No order as to costs.