H.R. Krishnan, J.

This is an appeal ostensibly from the final decree in a partition suit made after the Commissioner's report was received by the trial Court and the objection of the parties heard. Actually, however neither is the preliminary decree a real decision by the Court of the facts in dispute, nor is the Commissioner's report so-called one he could properly make under Order 26 Rule 11, Code of Civil Procedure Code. What has obviously happened is that the trial Court in the so-called preliminary decree based upon an alleged compromise (which at the most is only partial) abdicated in favour of the Commissioner's decision of issues which the Court itself should have decided.

The facts of the case are simple and to some extent common ground. The Defendant-Appellant and the Plaintiff-Respondent were partners in a joint venture for the collection and sale of forest produce. The business seems to have gone on till 1954 and then stopped on account of mutual differences. Whether in terms of law the partnership stood dissolved at that time was another question. Anyway, the parties had their usual differences about various points of detail and accordingly the present Respondent brought a suit for dissolution of partnership and rendition of accounts, against the Defendant-Appellant in 1955. The suit took its usual course till 1959 when the parties filed what they called a compromise petition. But actually the field of compromise was very narrow and most of the points in dispute remained unsolved in spite of the show of settlement. The compromise related only to the joint assertion that the partnership stood dissolved in 1954. Four other material problems remained unsolved, they being:

(i) In which of the two partner's charge the account books have been placed and in whose charge they are actually at present?

(ii) Who was the managing partner of this business?

(iii) On the capital invested in the partnership business would the partner investing it be entitled to interest?

(iv) For the day-to-day conduct of the partnership business would the managing partner be entitled to a remuneration (mehnatana) ? On the face of it, each of these problems is one for a solution to be recorded by the Court after admission and assessment of evidence brought in by the parties. Surprisingly enough, while accepting the so-called compromise, the Court made a preliminary decree on 11-4-59 incorporating these four questions and directed that a Commissioner appointed by the Court would solve them and further:

After finding an answer to these four questions the Commissioner shall decide whether there had been a profit or loss in the business and how that profit or loss, if any, should be shared between the parties......

Let the Commissioner submit a report after investigating this. The final decree will be made after study of that report in the light of the objections, if any, by the parties.

The Commissioner was appointed and after devoting considerable time and attention produced a report on 31-7-1962 in about 30 pages of typescript. He solved the four questions and in addition made certain investigations about the existence, custody and possible contents of the partnership books. The parties being heard on this "a final decree" was made on 22-7-1963, which has really no finality about it and will be meaningful only after some more investigations. A final decree should state how much in terms of money one of the parties owes the other or may incidentally set out the modus operandi for such settlement mutually of liquidated headings of assets and liabilities. Here, however, there are four headings and each of them involves an "if".

Without going into the preliminary decree which in any event has to be followed up by further investigations, we note that the reference to the Commissioner was basically unsound. It is not merely the case of wrong decision at the preliminary stage, followed by a wrong decree, Which having been allowed to remain unchallenged is