1. This is an appeal by the plaintiffs against the preliminary decree in a suit for partition.
2. A preliminary objection has been taken to the competence of the appeal on the ground that when it was lodged in this Court, the final decree in the suit had already been made by the Subordinate Judge and yet no appeal against that final decree was then or has at any time since then bean filed. The facts material for the determination of this question may be briefly stated.
3. The preliminary decree was made or the 5th April, 1922. The Court, thereupon directed that the 18th April, 1922: be fixed for the appointment of a Commissioner and the plaintiffs were called upon to deposit the requisite fees and copies by that date. The plaintiffs failed to comply with this order and the case was adjourned from time to time. On the 1st May, 1922, the following order was recorded: 'The plaintiffs have not deposited the costs for the execution of the commission as directed by the Court, so no partition could be effected. Hence the suit is dismissed.' On the 11th May,, 1922, the plaintiffs lodged the present appeal in this Court against the preliminary decree which had been drawn up, signed and sealed on the 28th April, 1922; and as may be anticipated, the memorandum of appeal makes no reference to the final decree. In these circumstances, the respondents have urged that the appeal is incompetent. The contention in substance is that after the suit had been finally dismissed on the 1st May, 1922, the plaintiffs were not competent to prefer an appeal against the preliminary decree alone and that it was incumbent on them to prefer an appear as well against the final decree as against the preliminary decree. This contention is supported by the decisions in Baikunta Nath Dey v. Nawab Salimulla Bahadur (1907) 6 C.L.J. 647, Mackenzie v. Narsingh Sahai (1909) 36 Cal. 762, Khirodamoyi Dasi v. Adhar Chandra Ghose (1912) 18 C.L.J. 321, Sadhu Charan Dutta v. Haranath Dutta (1914) 20 C.W.N. 231 and Kuloda v. Ramanand A.I.R. 1921 Cal. 109. The principle which underlies these cases is that the right of appeal from interlocutory orders ceases after the disposal of the suit. This rule is equally applicable to cases of suits in which there is first a preliminary decree and ultimately a final decree.
4. We may add that this view is not in conflict with that adopted in Ugra Narain v. Basanta (1913)18 C.L.J. 209, Nistarini v. Rai Mohan (1913) 18 C.L.J. 214, Abdul Jalil v. Amar Chand (1913) 18 C.L.J. 223, Atul v. Kunja Behari (1915) 22 C.L.J. 90, Atul v. Kunja Behary (1917) 27 C.L.J. 451, Peary Mohan v. Chandra Sekhar (1915) 19 C.W.N. 1132 and Bhagwan v. Ishan (1918) 22 C.W.N. 831. In these cases, the appeal against the preliminary decree had been lodged before the final decree was made and it was ruled that the final decree must be deemed a contingent decree, or in the words of Turner, L, J. in Shamapurshad v. Hurropurshad (1865) 10 M.I.A. 203 a subordinate and dependent decree, liable to be superseded by the modification or reversal of the preliminary decree, which was the subject-matter of an appeal before a superior tribunal when the final decree was made on the basis thereof in the primary Court. In this connection, reference may be made to the decision in Ashutosh v. Upendra (1916) 24 C.L.J. 467, Kuppuswamy v. Regmah (1912) 24 M.L.J. 190, Zemindari of Pangidigudem v. Rani Venkatappaya : (1919)37MLJ591 , where the doctrine of dependent judgment is explained and applied. There is consequently no conflict in principle between the two series of cases as explained in Nea Hussain v. Samir A.I.R. 1923 Cal. 282; but this does not appear have been fully appreciated in some of the cases in the books, such as, Kuriya Mal v. Bishambhar (1910) 32 All. 225,. Muhammad Akhtar v. Tasadduq (1912) 34 All. 493,, Kanahaiya v. Tirbeni (1914) 36 All. 532, Lakshmi v. Maru (1911) 37 Mad. 29 and Ramuvian v. Veerappudayan (1911) 37 Mad. 455. The decision in Bhagwan v. Ishan (1918) 22 C.W.N. 831 which belongs to the second category of cases does, however, call for one observation. In that case, the appeal against the preliminary decree was deemed competent, though preferred after the final decision had been pronounced,. on the ground that no formal document-described as a decree had been drawn up and signed at that time. This view cannot be defended on principle, and is opposed to that adopted by Brett, J., in Khirodamoyi Dasi v. Adhar Chandra Ghose (1912) 18 C.L.J. 321 where it is pointed out that the final decree, when formally drawn up, must bear the date of the final judgment. Consequently, the principle enunciated in the first class of cases should be held applicable, even though the decree may not have-been formally drawn up. This leaves no-room for doubt that the preliminary objection is well-founded in the present case.
5. The question next arises, whether the appeal should be dismissed on this ground. We have come to the conclusion that in the circumstances of this case we should' adopt the course sanctioned by Subramania v. Palachakrapani (1913) M.W.N. 140 and Kuloda v. Ramanand A.I.R. 1921 Cal. 109, namely, allow the memorandum of appeal to be amended so as to enlarge its scope and convert it into a combined appeal against both the preliminary and the final decree. Dattatraya v. Ajmuddin (1915) 18 Bom. L.R. 76, Balwant Singh v. Sakkaram (1915) 18 Bom. L.R. 80 (Note), Damodar v. Haribandh A.I.R. 1921 Mad. 406. The decision of the Judicial Committee in Pramnthanath Roy v. Lee A.I.R. 1922 P.C. 352 which shows that a litigant cannot utilise his own laches to obtain an extension of time, plainly does not bar the exercise of our discretion in this case under Section 5 of the Indian Limitation Act. On the other hand, reference may be made to Ranjit v. Ramudar (1912) 16 C.L.J. 77, and Kumidini v. Kamala A.I.R. 1922 Cal. 247, where an appeal of one class was allowed to be converted into an appeal of another class, and time was ex-tended for the purpose. On the verbal application of the appellants we consequently direct that the memorandum of appeal be amended so as to make the appeal an appeal not merely from the preliminary decree but also from the final decree dated the 1st May, 1922. The appellants undertake to annex to the memorandum of appeal a certified copy of the order, dated the 1st May, 1922 as no formal final decree was drawn up by the lower Court. He further undertakes to apply in this Court tomorrow for the requisite copy, as the records are here, and the copy will be furnished to him as early as practicable. The copy will then be annexed to the memorandum of appeal as amended. When this has been carried out the appeal will be set down for disposal on the merits as a combined appeal against the preliminary decree and the final decree. The respondents are allowed their costs of this hearing, which we assess at three gold mohurs; and they will be entitled to retain these costs (which will be entered in the decree of this Court) irrespective of the ultimate result of the appeal.
6. The appeal will be set down for further orders on the 14th January, 1924; and if on that date it transpires that our order has not been carried out by reason of laches of the appellants, the appeal will stand dismissed with costs. Meanwhile the appellants will be at liberty to amend the memorandum of appeal.