An order that conclusively determines the right of the parties in respect of any matter in controversy is a decree within the meaning of section 2(2) of the Code of Civil Procedure, even if it does not dispose of the entire suit.

Bhaskar Bhattacharya, J.

This revisional application is at the instance of plaintiffs in a suit for partition and is directed against Order No.46 dated January 15, 1993 passed by the learned Assistant District Judge, 1st Court, Midnapore in Title Suit No. 132 of 1989 thereby holding that the suit was not maintainable so far the properties described in Lot No.1 of the plaint schedule are concerned.

There is no dispute that on the consent of the parties the following issue framed by the court was heard as preliminary issue:-

"Is the suit maintainable in view of section 4 of the Benami Transaction (Prohibition) Act, 1988 in respect of properties alleged to have been purchased in benami?"

By the order impugned herein, the learned trial Judge has answered the issue in negative so far as the properties described in Lot No.1 are concerned and in affirm1,ltive in respect of remaining Lot Nos. 2 to 7.

Being dissatisfied, the plaintiffs have come up with the instant revisional application under section 115 of the Code of Civil Procedure.

2. After hearing Mr. Roychowdhury, the learned counsel appearing on behalf of the petitioners and Mr. Mukherjee appearing on behalf of the opposite parties and after going through the materials on record I am of the firm view that the order holding that the suit is not maintainable in respect of Lot No. 1 properties described in the Schedule of the plaint amounts to decree within the meaning of section 2(2) of the Code of Civil Procedure as it conclusively determines the right of the parties in respect of those properties and the suit is also disposed of so far those properties are concerned. The fact that the entire suit has not been disposed of by the said order is inconsequential inasmuch as in order to constitute a decree it is not necessary that all the matters in controversy should be disposed of; disposal of the suit in respect of any of the matters in controversy is sufficient to bring the order within the definition of decree if such determination conclusively determines the right of the parities in respect of such matter. In the instant case, the order should be treated to be a preliminary decree in respect of Lot No. 1. Similarly, the fact that no formal decree has been drawn up will not make it any the less a decree.

3. Mr. Roychowdhury in this connection has however placed reliance upon a decision of Panigrahi, J in the case of Sankari Maity and Ors. vs. Birendra Nath Maity, reported in 1998(1) CWN page 378 and has contended that a revisional application is maintainable against this type of an order.

4. The aforesaid matter came up before His Lordship under the following circumstances:

A suit for partition filed in the year 1971 was decreed in preliminary form declaring share of the parties. The defendant preferred an appeal but the same was dismissed. No further appeal having been taken against the decree of the learned 1st Appellate Court, the plaintiff prayed for final decree in terms of the share declared in the preliminary decree. At that stage, ..... the defendant came up with an application under section 4 of the Benami Transaction (Prohibition) Act praying for dismissal of the suit on the allegation that the claim of the plaintiff being based on the plea of benami, the suit was barred. The court allowed such prayer and dismissed the suit. Being dissatisfied, the plaintiff, instead of preferring appeal filed an application under section 115 of the Code of Civil Procedure. The objection as to the maintainability of a revisional application against the order dismissing the suit was turned down by his Lordship by relying upon an observation of Chittatosh MookeIjee, J (as His Lordship then was) in the case of Sides war Biswas and Anr. vs. State of West Bengal and Ors., reported in 1976 (1) CLJ page 470, taking a view that the decisions on the questions of limitation, jurisdiction res judicata and maintainability of suit which determine only the plaintiffs' right to sue should not be trea