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Bhola Nath Dass and ors. Vs. Sonamoni Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal273
AppellantBhola Nath Dass and ors.
RespondentSonamoni Dasi
Excerpt:
appeal - civil procedure code (act xiv of 1882), sections 2 and 396 order for partition in execution of decree. - .....come within the definition, because the adjudication of right under section 396 does not decide the suit; but we think that practically it does. all' that remains to be done is simply an enquiry into minor matters necessary for the final disposal of the case. we, think that an order under section 396 of the code of civil procedure is a 'preliminary decree' passed in the suit which gives the parties the right of appeal.5. it is not disputed that hitherto, on both sides of this court, such appeals have been allowed. it is also clear that considerations of the balance of convenience are in favour of an appear being allowed. we are, therefore, of opinion that the contention of the opposite party is not valid.6. the rule will be made absolute with costs.
Judgment:

Mitter and Macpherson, JJ.

1. It has been contended before us that this Rule ought to be discharged, because the appeal in connection, with which it was issued was not tiled in accordance with the provisions of the Code of Civil Procedure.

2. The contention of the opposite party is that the order which has been passed by the lower Court under Section 396 of the Code defining the several rights of the parties interested in the property in dispute, is not 'a decree' as defined in Section 2; that it is merely an interlocutory order against which, it has been urged, no appeal lies.

3. We are of opinion that, this contention is not sound. As regards the question whether the order under Section 396 comes within the definition of 'decree' as given in Section 2, there is no difference between such an order and one passed under similar circumstances regarding the partition of an immoveable property paying revenue to Government. There is as much reason to characterize the one as the other a 'decree.' On referring to Section 265, we find that the Legislature speaks of an order defining the rights of the parties to a suit for the partition of an undivided estate paying revenue to Government as a 'decree.'

4. We think that an order passed under Section 396 is a 'decree' as defined by Section 2. It has been contended that it does not come within the definition, because the adjudication of right under Section 396 does not decide the suit; but we think that practically it does. All' that remains to be done is simply an enquiry into minor matters necessary for the final disposal of the case. We, think that an order under Section 396 of the Code of Civil Procedure is a 'preliminary decree' passed in the suit which gives the parties the right of appeal.

5. It is not disputed that hitherto, on both sides of this Court, such appeals have been allowed. It is also clear that considerations of the balance of convenience are in favour of an appear being allowed. We are, therefore, of opinion that the contention of the opposite party is not valid.

6. The Rule will be made absolute with costs.


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