JUDGMENT
Knox, Actg. C.J. and Blair, J.
1. The Government on the application of Hafiz Abdul Rahim Khan, a party to the suit–Raja Hari Raj Singh v. Hafiz Abdul Rahim Khan–has referred to this Court for report and opinion an order passed by the Commissioner of Kumaun on the 25th October 1897, on the ground that it seems open to objection. The objection is thus stated: “The judgment of the Commissioner, dated the 25th October 1897, after deciding various points in the plaintiff’s favour, remanded the case under Section 562 of the Code of Civil Procedure.” “The Government is advised that this is a most material irregularity.” Upon the reference coming up for hearing it was brought to our notice that Raja Hari Raj Singh, the opposite party, had long been dead and that no one had been substituted on the record of the case. Under these circumstances we directed the Registrar to ascertain from the Government whether they still require any report and opinion. As the Government still requires a report and opinion, we have no alternative but to furnish it: no doubt the legal advisers of the Government will certify to the Government how far our opinion and report under these circumstances can form the basis of any effective order. With that we are not concerned and we express no opinion. We have heard the counsel for Hafiz Abdul Rahim Khan; we have heard the learned Government Advocate who has kindly appeared as amicus curia in the case. The suit between the parties is described in the Court of First Instance as a suit for cancellation of so much of a sale-deed as injuriously affected the plaintiff and for possession over one acre of land. In the Deputy Commissioner’s judgment the pleadings are set out, and five issues are framed. One of those issues, namely, the third, raises the issue of law as to whether the suit was or was not time-barred. The decision of the Deputy Commissioner was to the effect that the suit was time-barred. The remaining issues in this case were, however, considered, and a definite decision pronounced upon each one of them. In appeal the learned Commissioner dealt with the case in what was certainly a rather extraordinary way. He called for further information, and himself inspected the area in dispute. After this he remanded the case under Section 562 of the Code of Civil Procedure, evidently setting aside the judgment of the lower Court upon the preliminary point as to whether the suit was or was not time-barred. It is from this order under Section 562 of the Code of Civil Procedure that the present reference is made. Two questions arise for decision. The first as to whether it was the intention of the Government in the rules made by them in exercise of the provisions of Section 6, Scheduled Districts Act, that an appeal should lie from an order of 628 this description. Government Notification No. 628/VII-569B., dated 27th June 1894, Rule 17, in its language is wide enough to include such an order as this. Any final decree which may seem open to objection may be referred, and we have the authority of the Privy Council in the case of Saiyid Muzhar Hossein v. Mussamat Bodha Bibi and Anr. (1894) I.L.R. 17 All. 112, for holding that a remand order comprising the decision of a Court upon a cardinal issue of the suit, that issue being one which goes to the foundation of the case and which can never, while the decision stands, be disputed again, is a final decree. The next question is whether the decision of the Deputy Commissioner was one only upon a preliminary point, or whether it decided the other matters in issue. After reading the decision we have no doubt left. The suit between the parties was not confined by the Deputy Commissioner to the preliminary point of law, judgment was given on all the issues, and under these circumstances, looking to the language of Section 562 and the imperative language of Section 564, it was not open to the Commissioner to make the order he did under Section 562 of the Code of Civil Procedure. Our opinion is that that order was a bad one, and under ordinary circumstances should have been set aside. If we had been dealing with the case as an appeal before us, it would have been so set aside, and the case would have been returned for disposal by the Court corresponding to that of the Commissioner for disposal according to law.
