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Govind Ramchandra Shembekar Vs. Vithal Gopal Sahasrabudhe - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 75 of 1911
Judge
Reported in(1912)14BOMLR560
AppellantGovind Ramchandra Shembekar
RespondentVithal Gopal Sahasrabudhe
Excerpt:
civil procedure code (act v of 1908), section 91-preliminary decree-appeal -- if not appealed, the question cannot be raised in appeal on merits-party's duty to ash court to draw up a decree-practice.;in a suit brought by the plaintiffs to redeem a mortgage according to the provisions of the dekkhan agriculturists' relief act, a preliminary issue was raised whether the plaintiffs were agriculturists. the issue was found against the plaintiffs who were directed to pay the requisite court-fee within one week from the date of the finding. the payment not having been made the suit was dismissed. the plaintiffs appealed against the order of dismissal. in the appeal, the plaintiffs sought to impeach the finding on the preliminary issue :-;(1) that the preliminary decree in the case having..........dekkhan agricultures relief act. we think that the respondents' contention must be allowed.3. the decree appealed from is not a preliminary decree, but it is a final decree. there was, no doubt, the on the preliminary issue whether the appellants are agriculturists or not, and the court ought to have made a preliminary decree in terms of its finding on that issue. but no decree was drawn up. and though the statutory obligation lay on the court to draw up a preliminary decree to entitle the appellants to appeal, yet it was equally the duty of the appellants to ask the court to draw up that decree in order to enable them to present an appeal to this court. that duty the appellants failed to discharge in their own interests, and it is a reasonable inference to draw from it that they waived.....
Judgment:

N.G. Chandavarkar, J.

1. The appeal is preferred from a decree of the Subordinate Judge dismissing the suit, under the following circumstances. The suit was brought by the appellants to redeem the property in dispute according to the provisions of the Dekkhan Agriculturists Relief Act. The preliminary issue was raised in the Subordinate Judge's Court, whether the plaintiffs were agriculturists. That issue was found by the Subordinate Judge against the plaintiffs and he directed the plaintiffs to pay the requisite Court-fee within one week from the date of that finding. That order for the payment of Court-fee not having been complied with, the Subordinate Judge dismissed the suit under Order XVII, Rule 3. It has been held by the different High Courts that an order under Section 158 of the old Code of Civil Procedure, which is the same as Order XVII, Rule 3 is tantamount to a decree on the merits from which an appeal lies. Therefore, the final order made by the Subordinate Judge dismissing the suit was a decree, and it is because it was a decree that this appeal is allowed by law.

2. In arguing the appeal the appellants' pleader challenges the correctness of the finding of the Subordinate Judge on the issue, whether the appellants are agriculturists. The objection is raised by the respondents' pleader, that the appellants should not be allowed to re-open that question decided against them and to contend that they are agriculturists entitled take the benefit of the provisions of the Dekkhan Agricultures Relief Act. We think that the respondents' contention must be allowed.

3. The decree appealed from is not a preliminary decree, but it is a final decree. There was, no doubt, the on the preliminary issue whether the appellants are agriculturists or not, and the Court ought to have made a preliminary decree in terms of its finding on that issue. But no decree was drawn up. And though the statutory obligation lay on the Court to draw up a preliminary decree to entitle the appellants to appeal, yet it was equally the duty of the appellants to ask the Court to draw up that decree in order to enable them to present an appeal to this Court. That duty the appellants failed to discharge in their own interests, and it is a reasonable inference to draw from it that they waived the right which the Legislature had given to them of presenting an appeal against the preliminary decree.

4. Section 97 of the present Code of Civil Procedure requires that an appeal should be preferred from a preliminary decree and that if it is not preferred, the party aggrieved shall not be allowed to challenge the finding on the preliminary question in appeal on the merits of the suit. The intention of the Legislature was clearly to prevent preliminary questions being raised in the form of an appeal after the case has been decided upon the merits.

5. Now, here the preliminary decree having become extinct by reason of the final decree, and the appellants not having exercised their right of presenting an appeal to this Court from that decree, in the present appeal it is not open to the appellants to challenge the finding on the question whether they are agriculturists or not. The appellants' pleader, however, asks this Court to give them time to ask the lower Court to frame a preliminary decree in order to enable them to appeal against it. The Subordinate Judge has remarked in his judgment that this is an old case, and that it ought not to be allowed to linger on for nothing. We think that the appellants have been guilty of laches, and no further indulgence ought to be granted to them.

6. For these reasons the decree appealed from must be confirmed with costs.


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