Henry Richards, C.J.
1. This appeal arises under the following circumstances. The suit was one for partition. A preliminary decree was made on the 19th of December, 1907. The plaintiffs preferred an appeal within time against this preliminary decree. Before the appeal was decided, however, a final decree was made on the 10th of March, 1908. The defendant preferred an appeal against the final decree, and the plaintiffs filed cross objections under Order XLI, Rule 22. The two appeals then came before the lower appellate court. It dismissed the plaintiffs' appeal on the ground that they had not appealed from the final decree, and it dismissed the defendant's appeal upon the ground that he had not appealed against the preliminary decree. Both parties appealed to this Court, and our learned brother set aside the decree of the lower appellate court, dismissing the defendant's appeal and remanding the case to be heard on its merits. He, however, dismissed the plaintiffs' appeal on the ground that they ought to have appealed against the final decree. Reliance was placed upon the ruling of Kuriya Mal v. Bishambhar Das (1910) I. L.R. 32 All. 225 and also on the case of Narain Das v. Balgobind (1911) 8 A.L.J. 604. The facts in the present appeal are not identical with the facts in either of the two rulings relied on. The final decree never became final. The defendant had appealed against it, and the plaintiffs had filed cross objections. It was, therefore, sub judice when the appeal of the plaintiffs from the preliminary decree came on for hearing. The case of Kuriya Mal v. Bishambhar Das was like the present a case which arose before the present Code of Civil Procedure came into operation. The case of Narain Das v. Balgobind was one to which the provisions of the present Code were applicable. The decision in the latter case seems to me to have rested entirely upon the ruling in Kuriya Mal v. Bishambhar Das. Section 97 of the Code of Civil Procedure provides as follows:
'Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.' It seems to me that this Section shows that the proper mode of challenging the correctness of the preliminary decree is an appeal against that decree. I can see no reason why a party should be called upon to appeal against the final decree and to incur the expense of so doing merely to keep the other appeal alive. It may well be that the party has no objection to the final decree in itself and that his sole objection is to the preliminary decree. In many cases the party would admit that if the preliminary decree is confirmed, the final decree is correct. It seems to me also, that the final decree depends upon the preliminary decree, and that if an appeal is duly taken to the preliminary decree and succeeds the final decree necessarily falls with the reversal of the preliminary decree upon which it depends. I would allow this appeal.
2. I have also arrived at the same conclusion. The ground upon which the appeal of the plaintiffs was dismissed by the lower appellate court was that they had not appealed from the final decree passed by the court of first instance. That court overlooked the fact that at the time when the appeal of the plaintiffs came on for hearing, there was pending in that court an appeal preferred by the defendant in which objections had been taken by the plaintiffs, so that at the time of the hearing of the appeal of the plaintiffs from the preliminary decree, the final decree was sub judice and had not become final. That circumstance distinguishes this case from the two rulings on which the learned Judge of this Court has relied and which have been referred to by the learned Chief Justice. In the first of those cases no appeal had been preferred from the final decree, and in the latter of them the period of appealing from that decree is said to have expired when the appeal from the preliminary decree was filed. That is not the case here. Therefore, there was no reason for not entertaining the appeal preferred by the plaintiffs from the preliminary decree passed by the court of first instance. I also would allow the appeal.
3. The order of the Court is that the decrees of the court below and of this Court are set aside, and the case is remanded to the lower appellate court with directions to readmit it under its original number in the register and to hear and decide it on its merits. Costs here and heretofore will be the costs in the cause. The record may be sent back, as soon as possible, to enable the lower appellate court to dispose of the appeals of both parties at an early date.