An order of abatement under Section 57B of the West Bengal Estates Acquisition Act is not a decree and is not appealable.

The judgment of the Court was as follows :

The present petitioners as plaintiffs instituted a suit against the State of West Bengal and another in the Munsiff's Court at Bongaon, District 24-Parganas, inter alia, for a declaration of their title to 40 decimale of land in plot No. 422, L.S. Kbatian No. 1550 of mouja Manigram under the Police Station of Bongaon, District 24-Parganas and for permanent injunction to restrain the defendants from interfering with their possession therein. The defendant, in the said suit filed separate written statements contesting the plaintiffs' claim. The trial Court originally framed nine issues in the said suit. Subsequently two additional issues were framed, one of them being whether or not the suit was barred under the provisions of Section 57B of the West Bengal Estates Acquisition Act which was inserted in the statute during the pendency of the case.

2. The learned Munsif by his order, dated October 31, 1973 stayed the suit as be was of the opinion that 'operation of the amended Section 57B comes incidentally in the suit'. Subsequently, the learned Munsif vacated the stay order and directed that the question whether the suit was not maintainable being hit by Section 57B of the West Bengal Estates Acquisition Act be decided at the time of the trial. Thereafter, the suit was adjourned to August 21, 1974 for peremptory hearing. On the said date, the case was opened. The learned Mumsif first took up the matter relating to abatement of the suit under Section 57 B of the West Bengal Estates Acquisition Act. The learned Munsif after giving reasons held that "the suit clearly comes within the mischief of Section 57B of the W. B.E.A. Act and the suit therefore abates." The petitioners obtained the present Rule against the aforesaid order. Mrs. Usha Dutt, learned Advocate for the opposite party no. I has raised a preliminary objection to the maintainability of the present revisional application. According to her, the above order of the learned Munsif bolding that the suit had abated under Section 57B amounted to a decree, and therefore, an appeal lay against the order complained of.

3. In my view, there is no substance in this prelimmary objection raised on behalf of the opposite party no. 1. The decision on the question whether an order is a 'decree' within the meaning of Section 2 (2) of the Code of Civil Procedure, 1908 must depend upon its nature and contents (Vide observations of Sir Ashutosh Mookerjee, J. in (1) Deokinandan Singh v. Bansi Singh, 14 CLJ 35). The order in question does not satisfy the essentials of a 'decree' inasmuch as the same does nor amount to an adjudication conclusively determining the rights or the parties with regard to all or any of the matters in controversy in the suit. It is well-settled that the rights within the meaning of section 2 (2) of the Code, mean substantive rights in regard to the subject-matter of the suit [vide (2) 27 IA 209; (3) ILR 19 Cal 463 at page 468]. Interlocutory order on matters of procedure unless they determine substantive rights are not decrees. Therefore, the decisions on questions of limitation, jurisdiction, res judicata and maintainability of suit which determine only plaintiff's right to sue have been held not to be decrees [See (4) ILR 39 Bom. 339 (PB); AIR 1914 Bom. 149 ; (5) 18 CLJ pp. 78, 81 ; (6) AIR 1943 Lah. (FB) 140 (143) etc. See also Mulla on Civil Procedure Code, Volume I, 13th Edition, page 12 under the heading 'finding On issue'.

4. The West Bengal Estates Acquisition (Second Amendment) Act, 1973 was enacted in order that 'jurisdiction of the Civil Courts should be effectively barred and all pending civil suits should abate so far as they relate to alteration of any entry in the Record of Rights, power to retain land, and matters which are to be or have been already enquired and determined under the provisions of the Act" (vide the Statement of Objects and Reasons of the West Bengal Estates Acquisition (Second Amendment)