The Patna High Court, while allowing an appeal filed by the defendant no. 3/appellant against the judgment and decree dated 18.04.2017 passed by the learned District Judge, affirming the judgment whereby the learned appellate court held that even if no appeal is preferred against the preliminary decree, the only restriction is that in the appeal against the final decree, one cannot dispute the correctness of the preliminary decree if he has not filed an appeal against preliminary decree.
Brief Facts:
A Partition Suit was filed wherein the appellant was defendant no. 3. A preliminary decree was passed on 23.11.1960 declaring plaintiffs 4 Aanas share and directing for preparation of final decree and in view of the preliminary decree respective shares of the parties were allotted as per the preliminary decree. No party to the suit raised any grievance against the preliminary decree and hence, no appeal was filed against the preliminary decree. The learned trial court passed the judgment and final decree. Against the judgment and final decree, the defendant/appellant filed a Partition Appeal. The District Judge held that the appeal is not fit to be admitted and there is no question of condoning the delay.
Contentions of the Appellant:
Learned Counsel for the Appellant submitted that the appellant did not challenge the correctness of the preliminary decree. The learned District Judge interpreted Section 97 of the Code of Civil Procedure wrongly and held that since the appellant did not appeal against the preliminary decree, the appeal was not maintainable against the final decree. However, in the instant appeal, the appellant is not disputing the correctness of the preliminary decree and the provisions do not come in the way.
Contentions of the Respondents:
Learned Counsel for the Respondents submitted an appeal filed against the final decree without challenging the preliminary decree is not maintainable. He argued that if there is a variation in shares of respective parties in terms of the Advocate Commissioner's report upon which the Final Decree is passed, the aggrieved party cannot challenge the question of the correctness of the Advocate Commissioner Report in an appeal against the Final Decree.
Observations of the Court:
The Court noted that Section 96 provides for an Appeal against any decree unless it is otherwise provided for under the C.P.C., or under any other law for the time being in force. A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined, a decree incorporating such determination needs to be drawn up which is the final decree.
The Court observed that with regard to the maintainability of appeal against the final decree even if no appeal is preferred against the preliminary decree, the only restriction is that in the appeal against the final decree, one cannot dispute the correctness of the preliminary decree if he has not filed an appeal against preliminary decree.
The decision of the Court:
The Patna High Court, allowing the appeal, held that the learned appellate court below erred and was not justified in passing the impugned judgment in appeal against the final decree as not maintainable.
Case Title: Bhola Sahu vs Chandu Sahu & Ors.
Coram: Hon’ble Chief Justice Khatim Reza
Case No.: Second Appeal No. 287 of 2017
Advocate for the Appellant: Mr. Anil Kumar Jha
Advocate for the Respondents: Mr. Ajit Kumar
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