JUDGMENT
Henry Richards, C.J.
1. This appeal arises out of a suit for partition. On the 26th of April 1912 the Court of first instance made a preliminary decree for partition. On the 12th of June 1912 the defendants filed an appeal. On the 28th of June the first Court, notwithstanding that an appeal, against the preliminary decree was pending, made a final decree on the lines of its preliminary decree. On the 18th of April 1913 the appeal against the preliminary decree came on for hearing. Objection was taken that the appellant not having appealed against the final decree of the 28th of June 1912 could not maintain his appeal against the preliminary decree. The Court allowed this objection and dismissed the appeal. The defendants have now come to this Court in second appeal. The question which we have to decide is whether or not the fact that the defendants did not appeal against the final decree precludes the Court from hearing the appeal against the preliminary decree. Section 2, Clause 2 of the Civil Procedure Code, defines a ‘decree’ as including a preliminary decree. Section 96 gives a general right of appeal against decrees. Section 97 is as follows : “Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from, disputing its correctness in any appeal which may be preferred from the final decree.” This last provision is not contained in the Code of 1882. I may point out that in a suit like the present more often than not the appellant against a preliminary decree Would be unable to put forward any objection against the final decree in the event of his appeal against the preliminary decree being disallowed. In all probability if the preliminary decree was sustained the final decree would follow in its line and could not be challenged. In all such cases the only object of an appeal against the final decree would be to keep the appeal against the preliminary decree alive. 1 have already given my reasons for holding that the mere fact that there is no appeal against the final decree is no reason for not hearing the appeal against the preliminary decree on its merits in the case of Muhamad Akhtar Husain Khan v. Tasadduk Husain 16 Ind. Cas. 157 : 34 A. 493 : JO A.L.J. 19. No doubt a contrary view was taken in the case of (sic) Mal v. Bishambhar Das 5 Ind. Cas. 276 : 32 A. 225 : 7 A.L.J. 210. The learned Chief Justice at page 227 says : “It seem to us that a serious anomaly would be created by the modification of the preliminary decree of June 25th, 1903,. while the final decree of June 30th, 1908, remained in force and had not been appealed against,” It seems to me that these remarks proceeded upon the erroneous assumption that the final decree remained in force after the preliminary decree upon which it was based had been set aside. In my opinion in a suit for partition when the preliminary decree is set aside on appeal the final decree which is based upon it falls to the ground. If I am right in this there is no foundation for the supposed anomaly which the learned Chief Justice apprehended. It has been held by the Calcutta High Court that the final decree continued after the preliminary decree had been set aside, but all these decisions proceeded on the basis ,, that a party could challenge the correctness of the preliminary decree on an appeal from the final decree. The provision of the Code to which I have referred to above now sets this matter absolutely at rest. A party to a suit for partition who has not appealed against the preliminary decree can no longer challenge the correctness of that decree by an appeal against the final decree. In the case of Khirodamoyi Dasi v. Adhar Chandra Ghose 21 Ind. Cas. 516 : 18 C.L.J. 321. a Banch of the Calcutta High Court decided that notwithstanding the provision of Section 97 of the Code of Civil Procedure the final decree still stands. The learned Judges after quoting the section say :
That section does not, however, relieve the parson, who appeals from the preliminary decree, from the necessity of appealing against the final decree, nor does it provide how, if the preliminary decree is contrary to the terms o£ the final decree, the final decree is to be interfered with after it has been allowed to stand without any appeal being preferred against it.” With great respect to the learned Judges I think they overlooked that the whole foundation of the rulings in Calcutta was based upon the opinion of that Court that a party could challenge the correctness of the preliminary decree upon an appeal against the final decree. The provision of the Code which they themselves quote shows that this can be no longer done. In the course of the arguments the case of Lakshmi v. Marudevi 12 Ind. Cas. 664 : 37 M. 29 : 10 M.L.T. 437 : 21 M.L.T. 1063. has been cited. The learned Judges in that case took the same view which I take in the present case. I would allow the appeal.
Tudball, J.
2. I fully agree with what the learned Chief Justice has said. Where the second decree depends for its validity upon the first, when the latter is set aside on appeal the former must also go with it. Even the Calcutta High Court has resiled somewhat from the position which it took up formerly. In Abdul Jalil v. Amir Chand Paul 21 Ind. Cas. 510 : 18 C.L.J. 223. a Bench of that Court consisting of the learned Chief Justice and Sir Asutosh Mookerjee held that “when a preliminary decree for partition has been set aside on appeal, and pending appeal from the preliminary decree, a final decree was passed, no effect remained in the final decree.” With that view I fully agree. I would, therefore, allow the appeal.
Chamier, J.
3. I agree. The Code gives a right of appeal against a preliminary decree and further provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be prefered from the final decree. It seems, to me that we are not at liberty to read into the Code any provision to the effect that the passing of the final decree shall be a bar either to the institution or the hearing of an appeal against the preliminary decree. I would allow the appeal.
4. By the Court.–We allow the appeal, set aside the decree of the Court below and remand the case to that Court with directions to re-admit the appeal under its original number in file and proceed to determine it according to law. Costs here and heretofore will be costs in the cause. Costs in this Court will include fees on the higher scale.
