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Mea HossaIn Khan and ors. and Vs. Sheikh Samir and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal282(1),68Ind.Cas.475
AppellantMea HossaIn Khan and ors. and ;makram Khan and ors.
RespondentSheikh Samir and ors.
Cases ReferredNistarinee Babes v. Rai Mohun Biswas
Excerpt:
appeal - preliminary decree, appeal against--final decree, passing of--court, jurisdiction of, to decide appeal, if affected, - .....had no jurisdiction to hear the appeal against a preliminary deiree in a partition suit after the final decree had been, passed in that spit, reliance is placed on the case of, baikuntha nath kulada prosad v. ramanand patnaik 61 ind. cas. 923 : 25 c. w. n. 776 : 33 c. l. j, 414 : 48 c. 1036. but the facts of the present case are similar to those of the case of nistarince dabee v. bai mohun biswas 20 ind. cas. 576 : 18 c. l. j. 214. in the report in baikuntha nath : kulada prosad v. ramanand patnaik (2) there seems to be an error in the reference to the oase of khiroiamoyi dasi v. adhar ohandra ghose (3) obviously the case meant to be distinguished was that mentioned above nistarinee dalee v. rai mohun biswas (2). as pointed out in that case there is a difference between oases where the.....
Judgment:

1. In this appeal several preliminary objectious have been taken, but we do not think it necessary to consider them as we hold that the appeal fails on the merits.

2. On the merits the only point taken was that the lower Appellate Court had no jurisdiction to hear the appeal against a preliminary deiree in a partition suit after the final decree had been, passed in that spit, Reliance is placed on the case of, Baikuntha Nath Kulada Prosad v. Ramanand Patnaik 61 Ind. Cas. 923 : 25 C. W. N. 776 : 33 C. L. J, 414 : 48 C. 1036. But the facts of the present case are similar to those of the case of Nistarince Dabee v. Bai Mohun Biswas 20 Ind. Cas. 576 : 18 C. L. J. 214. In the report in Baikuntha Nath : Kulada Prosad v. Ramanand Patnaik (2) there seems to be an error in the reference to the oase of Khiroiamoyi Dasi v. Adhar Ohandra Ghose (3) Obviously the case meant to be distinguished was that mentioned above Nistarinee Dalee v. Rai Mohun Biswas (2). As pointed out in that case there is a difference between oases where the final decree is passed before the appeal is preferred and where it is passed after the appeal is preferred. In the present ease the appeal against the preliminary decree was filed on the 21st March 1917 and the judgment granting the final decree was delivered on the 2nd Jane 1917. Following the came of Nistarinee Babes v. Rai Mohun Biswas 21 Ind. Cas, 516 : 18 C. L, J. 321. we hold that the appeal to the lower Appellate Court was competent.

3. This being the only point taken on behalf of the appellants this appeal must be dismissed with costs.


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