High Court · 2012

The order dated 28.10.2009 passed by the learned Civil Judge No.1, Cacha r, Silchar in Title Suit No. 23/87 directing drawal of a final decree in the bac kdrop of confirmation of the preliminary decree by the higher courts constitutes the subject matter of the instant appeal. We have heard Mr KR Surana, Advocate for the appellants assisted by Mr S Banik, Advocate; Mr N Rajkhowa, Advocate for the respondent Nos. 1 and 4 and Ms P Chakraborty, Advocate for the respondent Nos. 6 and 18. Whereas the appellant s had been impleaded as defendant Nos. 3 and 4 in the aforementioned suit instit uted by the respondent Nos. 18 and 19, the respondent Nos. 1 and 4 were arrayed as the defendant Nos. 2 and 8 respectively. The long drawn legal tussle has its roots in the aforesaid suit institut ed by the respondent Nos. 18 and 19 herein as plaintiffs seeking a decree, among st others, for declaration of their share in the suit property, partition and d elivery of possession thereof as well as mesne profits. The suit was decreed on contest on 24.12.2001 and a preliminary decree was accordingly passed. The respo ndent No.1/ defendant No.2 filed an appeal being RFA 59/02 against the prelimina ry decree which he withdrew on 27.6.2003. The respondent No.3 (defendant No.7) also preferred an appeal before this Court against the preliminary decree being RFA 7/2003 which was dismissed on 8.4.2009. The Hon’ble Apex Court also affirmed the determination made by this Court. Admittedly, present appellants did not pr efer any appeal against the preliminary decree. In the above factual premise it, thus, became final and binding on the parties. It was thereafter by the order dated 28.10.2009 impugned in the instant appeal that the final decree was ordered to be prepared which incidentally was d one on 19.11.2009. In the interregnum the present appeal was filed against the o rder dated 28.10.2009. Thereafter, the present appellants filed an interim appli cation (registered as M.C. No. 370/10) with the following prayer: (cid:28)In the premises aforesaid, it is humbly prayed that Your Lordship may be please d to allow the instant petition allowing the petitioners to move the said Regula r First Appeal dispensing with the requirement of annexing a certified copy of t he decree dated 19/11/09 passed in Title Suit No. 23/1987 in the memo of appeal and/or pass such order/ orders as Your Lordships may deem fit and proper. (cid:29). A Division Bench of this Court by order dated 11.2.2010 while accepting the reasons for the above interim application, allowed the prayer. The undertaki ng of the learned counsel for the appellants to furnish a certified copy of the decree as and when it was made available to him by the Lower Court was also reco rded. The learned counsel for the represented respondents have assailed the ma intainability of the instant appeal as preliminary objection contending that th e order dated 28.10.2009 is not appealable. According to them, as the appeal has not been preferred against the decree dated 19.11.2009, the same is patently no t maintainable in law. They have urged further that as the appellants admittedl y had not challenged the preliminary decree, the instant appeal in the teeth of Section 97 of the Code of Civil Procedure (for short, hereinafter referred to as ’the Code’) ought to be dismissed in limine. It being not the contention of the appellants that the final decree is incompatible with the final decree, the lea rned counsel have insisted that the instant appeal is on the face of the records , not sustainable in law and on facts. Mr Surana per contra has argued that in terms of the order dated 11.2.20 10 passed in M.C. 370/2010, the instant appeal ought to be construed to be one a gainst the final decree and, thus, the same is maintainable in law. Pleading tha t at the time of filing of the instant appeal the final decree admittedly had no t been drawn up rendering it impossible for the appellants to challenge the same on merits, the learned counsel has maintained that in the interest of justice, the tenability or otherwise of the final decree ought to be examined by this Cou rt in the present proceedings. Mr Surana in his above pursuit has sought to plac e on records the translated version of the two decrees which reportedly are in v ernacular. We have carefully weighed the pleadings and the other materials on recor d and have duly assessed the arguments advanced. There is no wrangle at the Bar that the preliminary decree aforementioned though had been unsuccessfully challe nged by some of the defendants, the appellants herein did not at any point of ti me question the validity or correctness thereof. That this preliminary decree in view of the affirmation thereof by the higher courts had attained finality qua the parties is also not a matter of dispute. Section 97 of the Code is quoted hereunder for ready reference: (cid:28)97. Appeal from final decree where no appeal from preliminary decree.-Where any party aggrieved by a preliminary decree passed after the commencement of this C ode does not appeal from such decree, he shall be precluded from disputing its c orrectness in any appeal which may be preferred from the final decree. (cid:29). While interpreting the above provision, the Apex Court in Venkata Reddy & Ors. -vs- Pethi Reddy, AIR 1963 SC 992, had propounded that a preliminary dec ree passed, whether it is in a mortgage suit or a partition suit, in so far as t he matters dealt with by it are concerned, has to be regarded as conclusive. The ir Lordships held the view that though in suits which contemplate the making of two decrees-a preliminary decree and final decree-the decree which would be exec utable would be the final decree, the finality of a decree or a decision does no t necessarily depend upon its being executable. It was held that though suits of certain types can be regarded as fully and completely decided only after a fina l decree is made, the decision of the court arrived at the earlier stage also ha s a finality attached to it. It has indeed not been repudiated before us that the appellants not havi ng preferred any appeal against the preliminary decree are precluded from disput ing its correctness in this appeal even if construed to be against the final dec ree. Unmistakably, the instant appeal is against the order dated 28.10.200 di recting preparation of the final decree. Though Mr Surana by drawing sustenance from the order dated 11.2.2010 passed in M.C. 370/2010 has endeavoured to projec t that the instant appeal is against the final decree, having regard to the said order, we are unable to lend our concurrence to this plea. By the order dated 1 1.2010, this Court had only permitted the appellants to move the appeal by dispe nsing with the requirement of annexing the certified copy of the final decree da ted 19.11.2009. Thereby the present appeal in form and substance as preferred ag ainst the order dated 28.10.2009, in our comprehension, by no means can get tran sformed into one against the final decree dated 19.11.2009. Significantly, the i nstant appeal though preferred under Section 96 of the Code, the order in impugn ment cannot be construed in law to be a decree to permit the same. The order dat ed 28.10.2009 is not one enumerated under Order XLIII Rule 1 of the Code as well so as to maintain the instant appeal as one from an order as envisaged therein. The grounds taken in the memorandum of appeal also do not pose any impugnemnt t o the final decree dated 19.11.2009. The present appeal, therefore, by no means can be accepted to be one against the final decree. In the above view of the matter, the assailment of the maintainability o f the instant appeal has considerable substance. The learned counsel for the app ellants inspite of repeated queries of this Court has also not been able to indi cate the scope of scrutiny in an appeal against a final decree by a party who ha d abstained to impugn the preliminary decree. This, according to us, also assume s a decisive significance in the teeth of the bar embodied in Section 97 of the Act. In the face of the above determination, the appeal fails and is dismisse d. No costs.