Preliminary decree is undoubtedly an appealable decree. Section 97 of CPC is in the following terms:
"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 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."
5. The Apex Court had an occasion to consider the provision of Section 97, CPC in Mool Chand v. Dy. Director, Consolidation, MANU/SC/0507/1995 : (1995) 5 SCC 631 and explained the legal position in the following manner:
"26. Thus, if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against final decree.27. The Privy Council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji MANU/PR/0001/1915 : AIR 1915 OC 116 held that failure to appeal against a preliminary decree would operate as a bar to raising any objection to it in an appeal filed against final decree. This Court in Venkata Reddi v. Pothi Reddi MANU/SC/0024/1962 : 1963 Supp (2) SCR 616: AIR 1963 SC 992 has held that the impact of Section 97 is that the preliminary decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the court passing that decree. It observed as under:
"A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as embodying ... the final decision of the court passing that decree."This decision was relied upon in Gyarsi Bai v. Dhansukh Lal MANU/SC/0251/1964 : AIR 1965 SC 1055: (1965) 2 SCR 154 in which it was observed as under:"It is true that a preliminary decree is final in respect of the matters to be decided before it is made.... It is indisputable that in a mortgage suit there will be two decrees, namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."
6. In the instant case, the petitioner, admittedly, did not challenge the preliminary decree passed by the trial court. Even when the trial court asked him to produce the Gift Deed in question also, he failed to do so. The effect of Section 97 is that the preliminary decree so passed by the trial court, in so far as the matters covered by it is concerned, is regarded as embodying the final decision of the court passing the decree. There is, therefore, no improper exercise of jurisdiction by the learned Civil Judge in rejecting the series of application filed by the petitioner. Apparently, the petitioner is making a last ditch effort to stall the proceedings lawfully conducted by the trial court so that the respondent is deprived of the fruit of his litigation.
IN THE HIGH COURT OF TRIPURA AT AGARTALA
CRP No. 116/2016
Decided On: 19.01.2017
Pranballab Debnath
Vs.
Minati Debnath and Ors.
Vs.
Minati Debnath and Ors.
Hon'ble Judges/Coram:T. Vaiphei, C.J.
Citation: AIR 2017 Tripura 22
1. Having heard Mr. P. Chakraborty, the learned counsel for the petitioner at considerable length, this revision is absolutely devoid of merit and is being dismissed at the very threshold.
2. The petitioner is the defendant No. 5 in the suit. The respondent No. 1 is the plaintiff in the suit and instituted the suit against the petitioner and five other defendants before the learned Civil Judge, Junior Division, West Tripura for partitioning the suit land for declaring her entitlement to 1/7th share thereon. The learned Civil Judge by the order dated 5-2-2005 passed a preliminary decree declaring 1/7th share each of the respondent No. 1 and the 6 defendants including the petitioner. Thereafter, the defendant No. 1, who is the mother of the respondent No. 2 and the five defendants including the petitioner died whereupon her right to and interest in the suit land devolved upon them. This resulted in correction of the respective shares of the parties on the suit land to 1/6th. When the parties could not amicably partition the suit land, the respondent No. filed an application for final decree for declaring their respective shares to the extent of 1/6th in the suit land. A survey commissioner was thereafter appointed.
3. The petitioner filed a written objection against the application of the respondent No. 2 for passing a final decree and at the same time filed an application stating that his mother and sister had gifted their respective shares in the suit land in his favour by the Gift Deed bearing No. 1-2665 dated 16-5-1996. The trial court then directed the petitioner to produce the said Gift Deed, but he could not do so despite exercise of due diligence by him whereupon the trial court drew adverse inference against him and rejected the application so filed by him. The petitioner also filed an application under Order 18, Rules 17 and 18 CPC for examining him to prove the said Gift Deed. In the meantime, the respondent No. 2 filed his written objection against the said application on the ground that the applications were after-thought and a device to stall the proceeding and prayed for the rejection thereof. The trial court after hearing the parties passed the impugned order rejecting the said applications. Aggrieved by this, this revision is preferred by the petitioner. It is the contention of Mr. P. Chakraborty, the learned counsel for the petitioner that the petitioner has now become entitled to 3/7th share of the suit land by virtue of the said Gift Deed and the trial court misdirected itself by fixing a date for hearing on the report of the Survey Commissioner without considering his new case vis-à-vis the said Gift Deed; this resulted in irreparable loss to him. He, therefore, submits that there is improper exercise of jurisdiction by the trial court in throwing out his case without hearing him on merit.
4. I have given my anxious consideration to the contentions advanced by the learned counsel for the petitioner, but do not find any merit thereon. Preliminary decree is undoubtedly an appealable decree. Section 97 of CPC is in the following terms:
"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 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."
5. The Apex Court had an occasion to consider the provision of Section 97, CPC in Mool Chand v. Dy. Director, Consolidation, MANU/SC/0507/1995 : (1995) 5 SCC 631 and explained the legal position in the following manner:
"26. Thus, if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against final decree.27. The Privy Council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji MANU/PR/0001/1915 : AIR 1915 OC 116 held that failure to appeal against a preliminary decree would operate as a bar to raising any objection to it in an appeal filed against final decree. This Court in Venkata Reddi v. Pothi Reddi MANU/SC/0024/1962 : 1963 Supp (2) SCR 616: AIR 1963 SC 992 has held that the impact of Section 97 is that the preliminary decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the court passing that decree. It observed as under:
"A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as embodying ... the final decision of the court passing that decree."This decision was relied upon in Gyarsi Bai v. Dhansukh Lal MANU/SC/0251/1964 : AIR 1965 SC 1055: (1965) 2 SCR 154 in which it was observed as under:"It is true that a preliminary decree is final in respect of the matters to be decided before it is made.... It is indisputable that in a mortgage suit there will be two decrees, namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."
6. In the instant case, the petitioner, admittedly, did not challenge the preliminary decree passed by the trial court. Even when the trial court asked him to produce the Gift Deed in question also, he failed to do so. The effect of Section 97 is that the preliminary decree so passed by the trial court, in so far as the matters covered by it is concerned, is regarded as embodying the final decision of the court passing the decree. There is, therefore, no improper exercise of jurisdiction by the learned Civil Judge in rejecting the series of application filed by the petitioner. Apparently, the petitioner is making a last ditch effort to stall the proceedings lawfully conducted by the trial court so that the respondent is deprived of the fruit of his litigation.
7. For what has been stated in the foregoing, this revision is totally devoid of merit and is, accordingly, dismissed at the admission stage without issuing notice to the respondents. No costs.
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