Sadasiva Aiyar, J.

1. The 1st plaintiff is the appellant before us in this second appeal which is called an Appeal against Appellate Order.

2. This litigation has been going on for the last 26 years, the suit having been filed in 1895.

3. It was a suit for partition brought by the plaintiff against his father, brothers and other members of his (family and alienees.)

4. In 18 99 when the old Civil Procedure Code was in force the District Judge on appeal made a decree as follows: "It is ordered that the items Nos. 1, 2, 14 and 15 mentioned in the Schedule C and the moveables in Schedule D (except items 5, 10 and 37) of the plaint be divided into live shares and that the plaintiff be given a one fifth share of the same etc."

5. As pointed out by Bhashyam Iyengar, J. in Mallikarjunadusetti v. Lingamurthi Pantulu (1902) I.L.R. 25 Mad. 244 at page 277. "In the case of a suit for partition there is to be but one decree" (under the old Civil Procedure Code) "but before making that decree the Court may appoint a commissioner to submit a scheme for effecting the partition under Section 396. There is in the section no reference made to a preliminary decree. All that the section enjoins is that the Court "after ascertaining the several parties interested in the property of which a partition is sought and their several rights therein, may issue a commission etc." Thus it was only after the commissioner or commissioners sent the report or reports and after the actual division and allotment of shares to the parties (awarding sums if necessary for equalizing shares) and after hearing objections to the commissioners report or reports and deciding on those objections (if any) that the Court could pass the decree (and the only decree) in the suit under the old Code. There was no such thing as a preliminary decree under the old Civil Procedure Code in a suit for partition, and, of course, no such thing as a final decree. As a matter of practice, the order ascertaining the several parties interested in the property to be divided and their several rights therein used to be treated as itself a decree subject to appeal and as such an order does contain the adjudication as to rights and shares and persons interested, the description of that order as a decree may not be considered inapt. But, the description of that order as a preliminary decree and the description of the decree passed after the report of the commissioners making the actual division as a final decree are not authorised by the old Civil Procedure Code.

6. The distinction between the old Civil Procedure Code (Section 396) and the new Procedure Code (Order 26 Rs. 13 and I4, and Order 20, Rule 18, which contemplate the passing of a preliminary decree in place of the order, ascertaining the parties and shares and contemplate a final decree after the commissioners report) has not been kept in mind by the lower Courts during the progress of the present partition suit which as I said was governed by the old Civil Procedure Code for about 13 years after its institution and has been governed by the new Civil Procedure Code during the last 12 or 13 years.

7. The result has been that the order passed in 1899 under the old Code has been (by confusion and mistake) called a preliminary decree in the proceedings after the new Code came into force and what is called a final decree has (after the report of the commissioner appointed in this case in 1915,) been passed in September 1916. Against this final decree of September 1916, an appeal was preferred to the District Court which dismissed the appeal and against that dismissal the present second appeal has been brought. I think for the reasons stated above that the decree passed by the Subordinate Judge in September 1916 is the only decree passed in this case and that the so called decree of 1899 is not a preliminary decree but an interlocutory order ascertaining the rights and shares with a view to pass the partition decree in the case after the land