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Dattatraya Ramachandra Savale and ors. Vs. AjmuddIn FakruddIn and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in33Ind.Cas.146
AppellantDattatraya Ramachandra Savale and ors.
RespondentAjmuddIn FakruddIn and ors.
Excerpt:
civil procedure code act (v of 1908), section 97 - preliminary decree, appeal against, after final decree, of permitted. - - the dates clearly permit him to raise objection in one and the same appeal to both the decisions of the court in the preliminary decree and the decision in the final decree......the 30th july 1913, a preliminary decree was passed in a mortgage suit. on the 25th august 1913, a final decree was passed by which the appellant was required to pay rs. 8,000. on the 6th november 1913, he preferred this appeal against the preliminary decree only, although his objection is as regards rs. 2,000 of the amount which he was required to pay by the final decree. the dates clearly permit him to raise objection in one and the same appeal to both the decisions of the court in the preliminary decree and the decision in the final decree. if at the time of the appeal he had only in his way the preliminary decree, he would have to pay a court-fee of rs. 10. having, however, already a final decree in his way, he would have, in order to appeal against the decree which he really objects.....
Judgment:

1. The dates in this case are as follows: On the 30th July 1913, a preliminary decree was passed in a mortgage suit. On the 25th August 1913, a final decree was passed by which the appellant was required to pay Rs. 8,000. On the 6th November 1913, he preferred this appeal against the preliminary decree only, although his objection is as regards Rs. 2,000 of the amount which he was required to pay by the final decree. The dates clearly permit him to raise objection in one and the same appeal to both the decisions of the Court in the preliminary decree and the decision in the final decree. If at the time of the appeal he had only in his way the preliminary decree, he would have to pay a Court-fee of Rs. 10. Having, however, already a final decree in his way, he would have, in order to appeal against the decree which he really objects to, to pay a Court-fee exceeding Rs. 100; so that the reason of his action is pretty obvious. He is trying to avoid payment of the Court-fee upon the final decree which he objects to. A similar case came before this Court (see Balwantsing Ramchandra v. Sakharam Mancharam 33 Ind. Cas. 137 : 18 Bom. L.R. 80 note in which, on similar facts, the Court observed that where the appellant instead of appealing against the final decree appeals against the preliminary decree, the course is unreasonable, and Section 97 of the Civil Procedure Code does not in terms prevent a party from filing a combined appeal against a preliminary and final decree, if the dates permit him to do so. In that case the Court permitted the appellant to have a reasonable time to combine objections to the final decree in the pending appeal, paying such Court-fees as might be necessary, and an adjournment was granted for the purpose. We follow the decision in that case and we pass similar order. But before concluding it is necessary to refer to two judgments in the Madras and Allahabad High Courts which have been relied upon by the appellant Lakshmi v. Marudevi 12 Ind. Cas. 664 : 10 M.L.T. 437 : 21 M.L.J. 1063 : 37 M. 29 was a case arising upon different facts altogether. Kanhaiya Lal v. Tirbeni Sahai 24 Ind. Cas. 827 : 36 A. 532 : 12 A.L.J. 876 contains a passage to this effect--'It seems to me,' says the learned Chief Justice, 'that these remarks in Kuria Mal v. Bishambhar Das 5 Ind. Cas. 276 : 32 A. 225 : 7 A.L.J. 210, namely, 'that a serious anomaly would be created by the modification of the preliminary decree...while the final decree...remained in force and had not been appealed against', proceeded upon the erroneous assumption that the final decree remained in force after the preliminary decree upon which it was based had been set aside. In my opinion, in a suit for partition, when the preliminary decree is set aside on appeal, the final decree which is based upon it falls to the ground. If I am right in this, there is no foundation for the supposed anomaly which the learned Chief Justice apprehended. It has been held by the Calcutta High Court, that the final decree continued after the preliminary decree had been set aside, but all these decisions proceeded on the basis that a party could challenge the correctness of the preliminary decree on an appeal from the final decree. The provision of the Code to which I have referred above now sets this matter absolutely at rest. A party to a suit for partition who has not appealed against the preliminary decree, can no longer challenge the correctness of that decree by an appeal against the final decree.'

2. Here as we have pointed out, the dates permitted the appellant to challenge both the preliminary decree and the final decree within the time allowed by law for appeal against the preliminary decree and we cannot permit him to avoid the provisions of the Court Fees Act by getting what may or may not be an effective reversal of the final decree by a circuitous method when the direct method is open to him. We, therefore, will permit the appellant two months within which to combine in this appeal such objections as he may have against the final decree, paying such Court-fees as may be necessary. The appeal will be set down again in two months from this day when we will pass final orders if no objections have been added to the final decree.


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