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Monohar Peshakar Vs. Haran Chandra Karmakar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal543,71Ind.Cas.290
AppellantMonohar Peshakar
RespondentHaran Chandra Karmakar
Cases Referred and Mackenzie v. Lola Narsingh Sahai
Excerpt:
partition suit - final decree not appealed against--appeal against preliminary decree, if maintainable. - .....that the appeal is not maintainable, on the ground that no appeal had been preferred against the final decree passed in the suit before this appeal was preferred.3. it appears that a preliminary decree for partition was passed on the 6th may 1919. that decree was affirmed on appeal on the 2lst january, 1920. on the 20th march, 1920, the final decree was passed and the final decree was drawn up and signed on the 31st march 1920. the present appeal was filed on 7th may 1920, from the decree of the lower appellate court affirming the preliminary decree passed by the court of first instance; but no appeal has been preferred against the final decree.4. it will appear from the dates mentioned above that the final decree for partition was passed by the court of first instance before this.....
Judgment:

1. This is an appeal against a preliminary decree for partition.

2. A preliminary objection is taken on behalf of the respondent that the appeal is not maintainable, on the ground that no appeal had been preferred against the final decree passed in the suit before this appeal was preferred.

3. It appears that a preliminary decree for partition was passed on the 6th May 1919. That decree was affirmed on appeal on the 2lst January, 1920. On the 20th March, 1920, the final decree was passed and the final decree was drawn up and signed on the 31st March 1920. The present appeal was filed on 7th May 1920, from the decree of the lower Appellate Court affirming the preliminary decree passed by the Court of first instance; but no appeal has been preferred against the final decree.

4. It will appear from the dates mentioned above that the final decree for partition was passed by the Court of first instance before this appeal was preferred, and in such circumstances it has been held in a series of cases that the appeal is not maintainable that is to say an appeal against a preliminary decree is not maintainable unless there is also an appeal against the final decree. See the cases of Baikuntha Nath Chowdhury v. Ramanand Patnaik A.I.R. 1921 Cal. 109, Sadhu Charan Datta v. Hara Nath Datta [1915] 20 C.W.N. 231, Khirodamoyi Dasi v. Adhar Chandra Ghose [1913] 18 C.L.J. 321 and Mackenzie v. Lola Narsingh Sahai [1909] 36 Cal. 762.

5. That principle is not disputed by the learned Pleader for the appellant. But he urges that he might be allowed to amend the memorandum of appeal so as to turn it into an appeal not merely against the preliminary decree but also against the final decree, if he can show sufficient reason for not having preferred an appeal against the final decree so long.

6. But, apart from other considerations, the appeal against the final decree passed by the Court of first instance in the present case will lie not to this Court but to the lower Appellate Court. That being so, any amendment of the memorandum of appeal, even if allowed, would be of no use.

7. The appeal must, therefore, fail on the preliminary objection and is, accordingly, dismissed with costs.


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