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Parsotam Rao Tantia and anr. Vs. Radha Bai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.566
AppellantParsotam Rao Tantia and anr.
RespondentRadha Bai and ors.
Excerpt:
civil procedure code (act v of 1908), section 2(2)--preliminary decree--decision on the question of res judicata. - .....passed in the suit and, therefore, no appeal lies. what happened in the court below was this. a plea of res judicata was urged on behalf of the defendants. arguments were heard in regard to that plea and the court came to the conclusion that the matter was not res judicata between the parties. a number of other issues were framed and the court, after determining the preliminary point referred to above, proceeded to try the other issues. it is from the decision upon the issue as to res judicata that this appeal has been preferred. we are of opinion that the determination of such an issue is not a decree within the definition of that term as given in the code of civil procedure. no preliminary decree has been passed in the suit. what the definition means is that a court may pass a.....
Judgment:

1. A preliminary objection has been taken to the hearing of this appeal on the ground that no decree has been passed in the suit and, therefore, no appeal lies. What happened in the Court below was this. A plea of res judicata was urged on behalf of the defendants. Arguments were heard in regard to that plea and the Court came to the conclusion that the matter was not res judicata between the parties. A number of other issues were framed and the Court, after determining the preliminary point referred to above, proceeded to try the other issues. It is from the decision upon the issue as to res judicata that this appeal has been preferred. We are of opinion that the determination of such an issue is not a decree within the definition of that term as given in the Code of Civil Procedure. No preliminary decree has been passed in the suit. What the definition means is that a Court may pass a preliminary decree in certain circumstances, which is appealable, and a final decree subsequently. It could never mean that the determination of each issue would give rise to an appeal and that such determination would be deemed to be a decree.

2. We accordingly allow the preliminary objection and dismiss the appeal with costs including fees on the higher scale.


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