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Kuria Mal Vs. Bishambhar Das - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.276
AppellantKuria Mal
RespondentBishambhar Das
Excerpt:
partition suit - final decree made--appeal against the preliminary decree only not allowed. - .....by partition of a half share in the house in suit. on june 30th, 1908, the same court passed a final decree, giving the plaintiff possession of a specified half share in the house according to a plan which, had in the meantime been prepared by a commissioner, and adding certain orders as to costs which had been held over at the time the preliminary decree was passed. on july 28th 1908 one of the defendants appealed to the court of the district judge of meerut against the preliminary decree of juno 25th, 1908, without impeaching the final decree which had in the meantime been passed. the learned district judge passed a decree which purports to be in modification of the decree of june 25th 1908 and directs that the plaintiff's claim in respect of one-fourth share in the house in.....
Judgment:

1. This was a suit for partition of a certain house. On June 25th 1908 the Court of first instance, the learned Munsif of Ghaziabad, passed a preliminary-decree in favour of the plaintiff, declaring his right to possession by partition of a half share in the house in suit. On June 30th, 1908, the same Court passed a final decree, giving the plaintiff possession of a specified half share in the house according to a plan which, had in the meantime been prepared by a Commissioner, and adding certain orders as to costs which had been held over at the time the preliminary decree was passed. On July 28th 1908 one of the defendants appealed to the Court of the District Judge of Meerut against the preliminary decree of Juno 25th, 1908, without impeaching the final decree which had in the meantime been passed. The learned District Judge passed a decree which purports to be in modification of the decree of June 25th 1908 and directs that the plaintiff's claim in respect of one-fourth share in the house in dispute be dismissed, besides also modifying the order as to costs. The plaintiff, coming to this Court on second appeal, raises as a preliminary point the plea that where in a partition suit a final decree has been made, it is not open to an appellant to challenge the correctness of the preliminary decree without also appealing against the final decree. We have been referred to no direct authority of this Court on the point. The respondent before us relies, as did the learned District Judge, on the decision of this Court in Uman Kunwari v. Jarbandhan and Ram Raji Kunwari 30 A. 479 : A.W.N. (1908) 195 (F.B.) : 5 A.L.J. 447 : 4 M.L.T. 162. It was there laid down that the fact that a suit had been decided by the Court of first instance in compliance with an order of remand made under Section 562 of the Code of Civil Procedure (Act XIV of 1882), is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal. In our opinion that ruling does not cover the case now before us, A right of appeal from an order of remand under Section 562 of the Civil Procedure Code of 1882 was expressly given by Section 588 of the said Code, and this Court proceeded upon the ground that such right of appeal could not be taken away in the absence of some direct provision to the contrary. Moreover, in considering what the effect of the reversal of an order of remand under Section 562 aforesaid would be, this Court was careful to point out that anything done in pursuance of such an order would become ipso facto of no effect on the reversal of the said order, because the Court concerned would have no jurisdiction to pass any further order in the case (except by way of review) unless empowered to do so by the order under Section 562 itself. No such consideration arises in the case now before us, as it is clear that the learned Munsif after passing his preliminary decree had jurisdiction, and indeed was bound to proceed in due course to pass a final decree in the case. It seems to us that a serious anomaly would be created by the modification of the preliminary decree of June 25th, 1908, while the final decree of June 30th, 1908, remained in force and had not been appealed against. There is direct authority on the point in the case of Mackenzie v. Narsing Sahai 36 C. 762 : 1 Ind. Cas. 413, which decision is in favour of the contention raised before us by the appellant. We follow this ruling, and set aside accordingly the order and decree of the lower appellate Court and restore that of the Court of first instance. The plaintiff appellant will get his costs from the defendant-respondent in this and in the lower appellate Court. Costs in this Court will include fees cm the higher scale.


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