Judgement

Appeal from a judgment and decree of the High Court in its appellate jurisdiction (September 1, 1913) affirming, with a slight variation, a judgment and decree of Fletcher J. (April 22, 1912).

The suit was instituted in the High Court by the first respondent as one of the sons and executor of Ebrahim Soleman Saleji, deceased, against the appellants and the other respondents, claiming (inter alia) an account of the dealings and assets of the firm of Ebrahim Soleman and Co., in which his deceased father had been a partner. The partnership had been dissolved by arrangement between the partners on and from July 1, 1907, and the suit was commenced in June, 1908. On August 30, 1909, the trial judge, Fletcher J., declared that the partnership was dissolved and " ordered and decreed " that the matter be referred to the assistant referee of the Court, (1.) to inquire who were the partners who were entitled to share in the assets and goodwill, and (2.) to take an account of the dealings of the parties with the assets of the partnership business. This " order and decree" was not appealed from, and an inquiry accordingly took place. The report of the assistant referee showed, inter alia, that the appellants were retaining in their hands considerable sums forming part of the assets of the partnership, and had used them in continuing the business for their own benefit.

The learned judge dismissed certain exceptions to the report filed by the appellants and made a decree that they should bring into Court the amounts for which they were severally found liable to the partnership with interest at 6 per cent, per annum from July 1, 1907, the date of the dissolution.

The appellants appealed to the High Court in its appellate jurisdiction, contending, inter alia, that the decree or order of Fletcher J. of August 30, 1909, was wrongly made, in so far as it referred to the assistant referee the question as to who were the partners, and further that they should not have been ordered to pay interest.

The High Court, by its judgment delivered on September 1, 1913, slightly reduced the amount payable by the appellants by way of principal, but in other respects affirmed the decree. The learned judges held that the appellants, not having appealed against the decree or order of August 30, 1909, were precluded from disputing its correctness.

Sir R. Finlay, K.C., Dunne, and B. N. Bose, for the appellants. The trial judge had no jurisdiction to refer to the assistant referee the question as to who were the partners entitled to the assets and goodwill of the firm. Under the Code of Civil Procedure, 1908, Order xxv r. 15, it was only the taking of the accounts which could be referred. So far as the question as to who were the partners was referred the adjudication of August 30,] 909, was not a " preliminary decree " within s. 97 of the Code of Civil Procedure, 1908, since it was not a " decree " within the definition in s. 2, sub-s. 2, of that Code; there was no controversy as to the firm being dissolved. It was an order from which there was no right of appeal and which could only be questioned upon appeal from the final decree. [Khadem Hossein v. Emdad Hossein (( 1901) I. L. R. 29 Calc. 758.) and Code of Civil Procedure, 1908, s. 104, sub-s. 1 (i.), were referred to.] The appellants should not have been ordered to pay interest. Interest was not claimed by the plaint and the facts did not establish any case of fraud. [Interest Act (XXXII. of 1839), s. 1 ; 3 & 4 Will. 4, c. 42, ss. 28 and 29; Bullen and Leake, 2nd ed., pp. 51 and 52; London, Chatham and Dover Up. Co. v. South Eastern Ry. Co. ([ 1893] A. C. 409.); and Johnson v. Rex ([ 1904] A. C. 817.) were referred to.]

LORD DUNEDIN. Their Lordships are of opinion that the appellants are precluded by s. 97 of the Code of Civil Procedure, 1908, from disputing the correctness of the decree of August 30 1899 ; the reasons will be given later.

Upjohn, K.C., Cozens-Hardy, K.C., and Lowndes, for the respond