The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.902 of 2024 (In the matter of an application under Article 227 of the Constitution of India) Rajinikanta Seth …. Petitioner -versus- Manoj Kumar Naik & Ors. …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. K.A.Guru, Advocate For Opposite Parties
Legal Reasoning
: Mr. P.K.Satapathy, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 26th August 2025 B.P. Routray, J. 1. Heard Mr. K.A.Guru, learned counsel for the Petitioner and Mr. P.K.Satapathy, learned counsel for Opposite Parties. 2. Present CMP is directed against order dated 12th April 2024 of learned Additional District Judge, Kuchinda passed in RFA No.05 of C.M.P. No.902 of 2024 Page 1 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 2023, wherein RFA No.92 of 2006 and RFA No.05 of 2023 have been clubbed together for hearing. 3. The Plaintiff who is the present Petitioner, filed the suit praying for a decree of partition. The preliminary decree was issued on 30th November 2004 and challenging the same RFA No.92 of 2006 was preferred before the 1st Appellate Court by the Defendants. Said RFA No.92 of 2006 was dismissed for default on 4th February 2019 and subsequently restored on 24th July 2023. But in the meantime, the final decree proceeding was completed drawing final decree dated 12th April 20234. After restoration of RFA No.92 of 2006 on 24th July 2023, RFA No.05 of 2023 was filed challenging the final decree. Since both the appeals were pending, one against preliminary decree and other against final decree before the same Court, the Defendants filed a petition praying for hearing of both the appeals analogously. The same was allowed vide impugned order dated 12th April 2024 (Annexure-5) which is subject matter of challenge in present CMP. 4. The Plaintiff who is the Respondent in the appeal objected analogous hearing of both the appeals mainly on the ground that once final decree has been drawn, the appeal against preliminary C.M.P. No.902 of 2024 Page 2 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 decree cannot be allowed to sustain its life particularly when at the time of drawing the final decree the appeal against preliminary decree was dismissed for default. According to Mr. Guru, learned counsel for the Petitioner (Plaintiff), the Defendants had to take all such grounds in the appeal against preliminary decree to be available in the appeal against final decree and consequently the appeal against preliminary decree should be dropped. 5. Mr. Satapathy, learned counsel for the Defendant (Opposite Parties) submits that there is no flaw in the order of learned 1st Appellate Court directing for analogous hearing of both the appeals because after drawing of the final decree, the preliminary decree is merged with the same and particularly in the present case though final decree has been drawn the possession as per the final decree has not been delivered yet. 6. In Sital Parshad & Anr vs. Kishori Lal, AIR 1967 SC 1236, the Hon’ble Supreme Court have observed as follows:- 5. The question before us in the present appeal, therefore, is which of these two views is correct. Before we consider this question we may state certain well-settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial court. Generally speaking, the decree of the appellate court supersedes the decree of the trial court even when it C.M.P. No.902 of 2024 Page 3 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 Sulaiman Khan v. Muhammad confirms that decree and therefore it is well settled that only the appellate court can amend the decree thereafter : [see Muhammad Yar Khan [ILR (1888) 11 All 267] ]. It is equally well settled that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate court may not have extended the time for payment provided in the preliminary decree, where no final decree has been prepared in between : (see Jowad Hussain v. Gendan Singh [(1926) 53 IA 197] ). This applies even to a case where the decree of the appellate court is made more than three years after the time fixed for payment in the : see Fitzholmes v. Bank of Upper preliminary decree India [54 IA 52] . Further it is well-settled that the mere fact that there is an appeal from a preliminary decree does not oust the jurisdiction of the trial court to prepare a final decree even while the appeal is pending unless there is a stay order : see Sat Prakash v. Bahal Rai [ILR (1931) LXII All 283] . Even if a final decree has been passed and an appeal from a preliminary decree is not incompetent and it is not necessary for a party to appeal both from the preliminary decree and the final decree in order to maintain his appeal against the preliminary decree. In such a case where the preliminary decree is set aside the final decree is superseded whether the appeal is brought before or after the passing of the final decree : [see Talebali v. Abdul Aziz [ILR (1930) LVII Cal 1013] ]. Further it was observed in the last case that where an appellate court sets aside or varies a preliminary decree it can, and indeed could, give direction for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice as in all cases it ought to be. 6. Let us now turn to the problem before us keeping in mind the propositions indicated above. Now in an appeal from a preliminary decree one of three things is possible. Firstly, the appeal may be allowed and the preliminary decree reversed. Secondly, the appeal may be dismissed and the preliminary decree confirmed in toto. And thirdly, there may be modification of the preliminary decree in appeal and this modification may be one of two kinds : (i) the amount decreed may be increased or (ii) the amount decreed may be reduced. C.M.P. No.902 of 2024 Page 4 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 7. There can in our opinion be no doubt that if in appeal the preliminary decree is reversed, the final decree must fall to the ground for there is no preliminary decree thereafter in support of it. It is not necessary in such a case for the defendant to go to the court passing the final decree and ask it to set aside the final decree. Even if the defendant does not make an application to the court for setting aside the final decree within three years because the preliminary decree has been reversed, the decree-holder cannot get the right to execute the final decree which has no preliminary decree in support of it. If an execution petition is made on such a final decree even though more than three years after the decree in appeal has been reversed, the defendant has simply to ask the court where the execution petition is made to refuse to execute the decree on the ground that the preliminary decree in support of it has been set aside. It seems to us that in such a case it is the duty of the executing court to take note of the fact that the preliminary decree in support of the final decree has been reversed and it should refuse to execute the final decree even though the fact is brought to its notice more than three years after the preliminary decree. In such a case in our opinion no question of limitation arises. in appeal reversing the decree xxx xxx xxx 13. It will be seen from this form of the final decree that it is entirely dependent upon the preliminary decree. Therefore where the preliminary decree has been confirmed in toto and the appeal therefrom has been dismissed, there is no change whatever to be made in the final decree, for that decree already provides for subsequent interest after the date of the preliminary decree and for subsequent costs, charges and expenses. Therefore, in such circumstances if the final decree has already been prepared before the judgment in appeal from the preliminary decree, there is nothing more to be done and the final decree as it stands needs no amendment. It is true that there is a general principle that a decree passed in appeal even where it confirms the trial court's decree supersedes that decree. But where we are dealing with a decree passed in appeal from a preliminary decree and the final decree has already been passed in the meantime, the decree of the appellate court on appeal from the preliminary decree only supersedes the preliminary decree; it cannot and C.M.P. No.902 of 2024 Page 5 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 does not supersede the final decree which was not taken in appeal. Therefore if the decree in appeal from the preliminary decree confirms it in toto, the final decree already passed needs no change and must continue to stand. It is true that if no final decree has been passed before the appeal from the preliminary decree is decided, the decree-holder gets three years from the date of the decree in appeal from the preliminary decree to apply for a final decree. That however is a question of limitation and courts have held that in such a case three years run from the date of the decree in appeal from the preliminary decree in order apparently not to compel the decree-holder to apply for a final decree if he does not wish to do so and wants to await the result of the appeal from the preliminary decree. But if the decree-holder does not wish to await the result of the appeal from the preliminary decree he can ask for a final decree in the meantime, and if the preliminary decree is confirmed in toto the final decree will need no change and can be executed as it stands. The decree-holder in such a case need not apply for a fresh final decree and can execute the final decree already passed in the meantime. In such cases where a final decree has been passed in the meantime while an appeal from the preliminary decree is pending, it is well to remember the observations of Rankin, C.J. in Talebali case [ILR (1930) LVII Cal 1013] that the existence of the final decree ought to be brought to the notice of the appellate court in all cases and that it is the duty of the appellate court to give directions with respect to the final decree if it considers necessary. 14. Further we are of opinion that in a case where an appeal from the preliminary decree is dismissed and the preliminary decree is confirmed in toto, it does not follow that the period of payment allowed in the trial court's decree is extended automatically even though a final decree has been passed in the meantime. It seems to us that it is the duty of the appellate court to indicate when dismissing the appeal from a preliminary decree in toto whether the time for payment is to be extended and if it does not do so, the original time granted for the purpose must stand. In the present case the decree passed in appeal from preliminary decree shows that after setting out the decree of the trial court, all that the appellate court did was to say that the preliminary decree passed by the trial court was amended to this extent that the plaintiff would C.M.P. No.902 of 2024 Page 6 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 also be entitled to interest at Rs 6 per cent on the principal amount from the date of the suit till the date of the decree and also gave the plaintiff costs of the appeal. There was no direction for preparation of any fresh preliminary decree; nor was there any direction of changing the period fixed in the preliminary decree for payment of the amount. Where therefore the appellate court in an appeal from a preliminary decree says nothing about the time fixed for payment and confirms the preliminary decree in toto that time in our opinion stands and does not automatically get extended for six months or such other period as might have been fixed in the preliminary decree from the date of the decree in appeal from the preliminary decree. We agree with the view taken in Rukhmabai v. Krishnarao [ILR (1952) Nag 243] that it is not obligatory on a court of appeal to fix a fresh date for redemption in a mortgagor's appeal from a mortgage decree for sale even where there is some variation in the amount payable under the preliminary decree. 15. Then we come to the third class of cases where there has been variation by the appellate court in appeal from the preliminary decree. This variation can be of two kinds; firstly, the amount fixed for redemption may be increased as happened in the present case, or secondly, it may be reduced. In the first case we are of opinion that the matter stands on exactly the same footing as in the case where the appeal from the preliminary decree by the defendant is dismissed in toto. However, in the second case, where variation is in favour of the defendant and the amount fixed for redemption is reduced, a question may arise whether the period for redemption can be said to have been extended for six months or such other time as may be provided in the preliminary decree under appeal but beginning from the date of the decree in appeal. In such a case we are of opinion that it is the duty of the appellate court when it is reducing the amount payable for redemption to fix some time for the purpose in the interest of justice. But it is not bound to do so and if it does not do so, the original time fixed in the preliminary decree stands even though the amount for redemption may have been reduced : [see Rukhmabai case [ILR (1952) Nag 243] ]. Nor do we think that any serious harm is done to the defendant mortgagor in such a case for under Order 34 Rule 5(1), even though no fresh time may have been fixed by the C.M.P. No.902 of 2024 Page 7 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 appellate court where the amount for redemption is reduced, the mortgagor-defendant would have time up to the date of the confirmation of sale to deposit the amount and save the property. In these circumstances we see no reason to distinguish even this case where variation results in reduction of the amount of redemption from the case where the decree of the appellate court affirms the preliminary decree in appeal in toto. 16. We are further of opinion that even where there has been a variation in the decree, the final decree, if passed in the meantime, requires no formal amendment in view of the form in which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other, the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out. Ramnath case [ILR (1947) All 40] was of this latter kind. There the appellate court directed the preparation of a fresh preliminary decree in accordance with its judgment. In such a case it may be said that as there had to be a new preliminary decree in accordance with the direction of the appellate court, a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of the appellate court with respect to the preparation of a new preliminary decree, and all that the appellate court orders is merely a variation in the amount for redemption — be it more or less than that provided in the preliminary decree — it is in our opinion the duty of the executing court to see when it is asked to execute the in a modifications made by the appellate court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate court, and all that is required is that the executing court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of final decree prepared the meantime that C.M.P. No.902 of 2024 Page 8 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 variation one way or the other. The only exception to this principle is a case where the appellate court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present however is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing court, when variations made by the appellate court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiar case [ILR (1947) Mad 132] is correct subject to what we have said with respect to the case where there are specific directions by the appellate court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment. 7. In Talebali vs- Abdul Aziz, AIR 1929 Cal 689, a larger bench of Calcutta High Court have observed that the function of the final decree is merely to re-state and apply with precision what preliminary decree has ordained, and there is nothing in the Code to the effect that passing of final decree shall be a bar either to the institution or the hearing of any appeal against the preliminary decree. This Court in Abdul Mazid Khan vs. Abdul Rasid Khan., 2011 (II) OLR 214, by relying on Sital Parshad (supra) have set aside the final decree proceeding and directed to redraw the same accordingly. C.M.P. No.902 of 2024 Page 9 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 8. Again in Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande & Anr., AIR 1995 SC 1211, it has been observed that a preliminary decree in a partion action is a step in the suit which continues until the final decree is passed. 9. In the instant case, as per the facts stated above, two appeals one against the preliminary decree and other against the final decree passed in a suit for partition are pending before the 1st Appellate Court. The further fact that drawing of final decree when the appeal against preliminary decree was dismissed for non-prosecution is though not disputed, it is further admitted that the carving of shares and consequent delivery of possession to all such co-sharers pursuant to the Amin Commission report has not been completed yet. At the same time, it is true that the parties who were in possession of their respective shares from the beginning of the suit are continuing with their possessions, but the subsequent possession pursuant to the Amin Commission report has not been acted upon by any of the parties. Thus, it is seen that though the final decree has been drawn up but has not been acted upon fully pending the appeals against final decree as well as preliminary decree. C.M.P. No.902 of 2024 Page 10 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 10. It is further found that drawing of final decree pending appeal from the preliminary decree would not take away the merits of the preliminary decree, for the reason that the preliminary decree determines the share of the parties in a suit for partition. So the substantial decree determining the extent of share of the parties is the preliminary decree depending on which the final decree would follow carving of particular shares of respective parties. Therefore, for the mere reason that final decree has been drawn up pending the appeal against the preliminary decree would not nullify the purpose of preliminary decree where the challenge of substantial share in favour of the parties is questioned. In such situation, when the appeal has also been preferred against the final decree, it is almost inevitable to decide the appeal against preliminary decree before the appeal against final decree is taken up. Thus, in such a contingency, it would be desirable for the Court, where both the appeals are pending, to club up both the appeals for hearing together. Therefore, the direction of the 1st Appellate Court for analogous hearing of both the appeals could not be faulted with and the plaintiff cannot claim at this juncture to drop the appeal against preliminary decree as infructuous or dead. The Trial Court to avoid all such C.M.P. No.902 of 2024 Page 11 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Sep-2025 14:20:47 inconveniences has rightly directed for hearing of both the appeals analogously and therefore, this Court does not find any merit to interfere with the same. 11.
Decision
In the result, the CMP is dismissed. 12. As prayed by both parties, the Appellate Court is directed to complete hearing of both the appeals as early as possible preferably within a period of four months from the date of receipt of certified copy of this order. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.902 of 2024 Page 12 of 12