B.B. Ghose, J.
1. The facts in this case are so novel that I have never coma across anything like it in my experience. A preliminary decree was passed in a suit for partition. That decree was appealed against and confirmed by the lower appellate Court. On second appeal, again, that decree was affirmed by the High Court. Thus the preliminary decree was affirmed by the highest Court in the land. When it went back to the trial Court to make the final decree for partition, the learned Munsif discovered that the property was worth more than the pecuniary limit of his jurisdiction and he took the extraordinary course of returning the plaint to be presented to the proper Court. The plaint had already merged in a decree and it is inconceivable how it struck the learned Munsif that the plaint could be returned at that stage. He held that the decree was a nullity, because he had no jurisdiction to entertain the suit when it was presented. No objection, was taken to the valuation by the defendant and the preliminary decree, as I have already stated, was confirmed by the High Court. The plaintiff appealed as against the order returning the plaint to the learned Subordinate Judge and ha held that the decree being a nullity, the learned Munsif was quite justified in observing that there has been an abuse of the process of the Court and as the plaintiff tried to defraud the Government by undervaluing the suit, his course in returning the plaint was right. Now this phrase 'an abuse of the process of the Court' seems to me to have been abused in this case. There are a number of cases in which the matter of abuse of the process of the Court has been bealt with by this Court as well as by other Courts. But the under valuation of a suit even if that was done, has never, so far as I know, been treated as an abuse of the process of the Court. When the preliminary decree has been made for partition, it only lies with the Court to make a final decree in accordance with it and it has no jurisdiction to return the plaint to be filed in another Court. This is an order which the learned Munsif has no jurisdiction to make.
2. The result, therefore, is that the order of both the Courts below is set aside and the case sent back to the Munsif to make a final decree according to law. The appellant is entitled to his costs of this Court as well as of the lower appellate Court, hearing fee in this Court being assessed at three gold mohurs
S.K. Ghose, J.
3. I agree.