1. This is an appeal on behalf of the first party defendant in a suit for partition of joint property, and is directed against the preliminary decree made on the 11th April 1907.
2. A preliminary objection is taken to the hearing of the appeal on the ground that before the appeal was presented to this Court the final decree in the suit had been made by the Subordinate Judge on the 10th July 1907, and that consequently it was not open to the appellant to challenge the correctness of the preliminary decree, without preferring an appeal against the final decree. In our opinion, this contention is well founded, and the appeal is incompetent.
3. The principle applicable to cases of this description was laid down by this Court in Madhu Sudan Sen v. Kamini Kant Sen 32C. 1023, where it was ruled that the right of appeal from interlocutory orders ceases with, the disposal of the suit. That principle, in our opinion, is equally applicable to cases of suits in which there is first a preliminary decree and, ultimately a final decree. That this principle, which was followed in Baikunta Nath Dey v. Nawab Salimulla Bahadur 6 C.L.J. 547, is applicable to the case before us, admits of no controversy, and follows obviously from the application of a simple test. If this appeal is heard on the merits and the preliminary judgment of the Subordinate Judge set aside, what would be the position of the parties? The final decree, which up to the present moment has not been questioned by way of appeal, would still stand, and that decree would entitle the plaintiff to eject the appellant. If the appeal is heard and decided in favour of the appellant, in order to give him any relief, the final decree, against which no appeal has been preferred, would have to be indirectly set aside. It is difficult to appreciate how such a state of things could possibly have been contemplated by the Legislature. Nor does any question of hardship arise, for, on the 19th July 1907, when the appeal now under consideration was presented to this Court, it was open to the appellant to prefer an appeal against the final decree which had been made nine days previously. It is needless for our present purposes to consider under what circumstances no appeal was filed against the final decree. The fact remains that up to the present time the final decree has not been challenged. We must take it, therefore, that on the 10th July 1907, as soon as the final decree was made, the appellant lost his right to prefer an appeal to this Court against the preliminary decree of the 11th April 1907.
4. Our attention was invited to the decision of a Full Bench of the Allahabad High Court in Uman Kunwari v. Jarbandhan 30 A. 479, in which it was ruled that the fact that the suit has been decided by the Court of first instance in compliance with an order of remand made under Section 562 of the Code of Civil Procedure is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal. After consideration of this decision, we adhere to the view taken by this Court in the cases previously mentioned. We observe that one of the reasons given by the learned Judges of the Allahabad High Court is that if an appeal is not preferred against an order of remand, the party would be without remedy, because according to the practice of the Allahabad High Court, as indicated in Sheo Nath Singh v. Ram Din Singh 18 A. 19, the party aggrieved by the order of remand would not be entitled in an appeal against the final decree to limit his grounds to the order of remand alone. No such, rule, however, prevails in this Court; in our opinion, if the final decree has been made, it is not only open but the duty of the party who is aggrieved by the order of remand, which up to that stage has not been questioned by way of appeal, to prefer an appeal against the final decree and to question the validity of the interlocutory order.
5. The appeal, therefore, fails and must be dismissed with costs. As the appeal has not been heard on the merits, we assess the hearing fee at three gold mohurs.