1. This is a suit for partition. The plaintiff and the 1st defendant are the sons of one Cunniah Mudali and the 2nd and 3rd defendants are the sons of the 1st defendant. When the suit first came on for hearing, the learned Judge referred the question regarding the extent of the family property to a commissioner. The commissioner sent in his report in April. Mr. Justice Wallis, as he then was, differed from the commissioner on one point, namely, that the Royapettah garden which was held to belong to the wife of the 1st defendant by the commissioner was family property. The learned Judge passed a preliminary decree to the effect that the Royapettah garden should go to the plaintiff on his paying Es. 600 to defendants Nos. 1 to 3 and that items Nos. 1 to 3 should go to the 1st to 3rd defendants who were ordered to pay to the plaintiff a sum of Rs. 3,800 and odd within a month. There was a further direction that if the said sum of Rs. 3,800 and odd was not paid in a month, the plaintiff was to become absolute owner of items Nos. 1 to 3. There was an appeal against this preliminary decree which was not decided until two years after. In the meantime a final decree in pursuance of the preliminary decree was passed, As the defendants Nos. 1 to 3 did not pay the money within the time stipulated, the plaintiff was put in possession of items Nos. 1 to 3 as absolute owner thereof.
2. The appeal against the preliminary decree was disposed of on the 9th of September 1912. The appellate decree varied the preliminary decree by declaring that the Royapettah garden was the property of the 1st defendant's wife and that it. was not part of the family property. As a result of this pronouncement, application was made by the 1st defendant for restitution of the garden to the wife. Thereupon Mr. Justice Bakewell before whom the application was made came to the conclusion that the original final decree passed on the footing of the preliminary decree should be revised and that a fresh final decree should be passed. It is against this direction of the learned Judge that this appeal has been preferred.
3. We think the course adopted by the learned Judge is right. Section 97 of the Civil Procedure Code makes it incumbent upon the parties to appeal against the preliminary decree. Under what circumstances : such an appeal should be preferred has been pointed out by the Judicial Committee in Ahmad Musaji v. Hashim Ebrahim Saleji I.L.R. 1916) C. 914. In the present case, by the passing of the decree in appeal, the orginal partition has become infructuous. The equalisation as to value was dependent upon the view that the Royapettah garden belonged to the family. When that view was upset in appeal, it became necessary that there should be a fresh partition. Consequently the final decree passed by Mr. Justice Wallis can no longer remain in force. It was pointed out in Lakshmi v. Maru Devi I.L.R. (1911) M, 29 and in Ramuvien v. Veerapudayan I.L.R. (1911) . M. 455 that if a preliminary decree is reversed on appeal, the final decree' passed on the footing of that preliminary decree ceased to be operative. We think the same result would follow in cases of modifications of the preliminary decree which imperilled the original final decree. In our opinion, the result of the appeal was to imperil the final decree based on the preliminary decree. The principle of the decisions of Jenkins, C.J.. and Mookerjee, J. in Nistarini Debi v. Rai Mohan (1918) 18 C.L.J. 214 and Abdul Jalil v. Amer Chand (1913) 18 C.L.J. 223 and of the decision in Wahidunnisga v. Dip Narain Pershad 20 C.W.N. 1174 are applicable to the present case. We must therefore uphold the order of Mr. Justice Bakewell. There has been great delay on the part of the respondents Nos. 1 to 3. We do not think they are entitled to their costs in this appeal. The other costs have been provided for by the learned Judge and we agree with his directions. We dismiss the appeal.