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Judgment
Sugato Majumdar, J. :
The instant Second Appeal is preferred against the Judgment dated 2oth March, 2012 passed by the Learned Additional District Judge, 11th Court at Alipore, in Title Appeal No. 72 of 2010.
The suit was filed by the Appellants/Plaintiffs in the Court of Learned Civil Judge (Senior Division) at Alipore being Title Suit No.259 of 1995, praying for partition by metes and bounds. The preliminary decree was passed on 20th February, 2003 by the Learned Trial Court defining the shares of the Appellants/Plaintiffs to be 1/6th share plus 1/36th share in the suit property. A separate possession was also ordered. There was no appeal preferred. Subsequently, Partition Commissioner was appointed who submitted report. Partition Commissioner’s Report was accepted and final decree was drawn up on the basis of the Report of the Partition Commissioner on 24th June, 2008.
Appeal was preferred from the final decree before the Court of the District Judge at Alipore, South 24 Parganas. The appeal was numbered as Title Appeal No.72 of 2010. The Appeal was finally disposed of by the First Appellate Court in terms of the Judgment dated 20th March, 2012 setting aside the final decree passed by the Learned Trial Court. It was noted that no application at all could have been filed for final decree by the Defendant No. 1, 2, 3A, 3B & 3C as the preliminary decree did not contain any declaration of their shares. This omission, according to the First Appellate Court, rendered the application for final decree and all subsequent proceedings including the Report of the Partition Commissioner as null and void and of no consequence. It was further observed by the First Appellate Court that a “patently illegal final decree” cannot be affirmed.
On being aggrieved and dissatisfied, the instant appeal was preferred.
At the time of admission of the appeal, the following questions of law were framed:
I. “Whether the Lower Appellate Court erred in law in reversing the decree of the Trial Court and whether in doing so the Lower Appellate Court applied the correct legal principles/tests?
II. Whether the judgment and order of the Lower Appellate Court is contrary to Section 97 of the Code of Civil Procedure?”
The Learned Counsel for the Appellant submitted that when no appeal was preferred against the preliminary decree, Section 97 of the Code of Civil Procedure, 1908 stands on the way to challenge the same preliminary decree after passing of the final decree. According to the Learned Counsel for the Appellant, the preliminary decree stands affirmed having not been challenged. The Report of the Partition Commissioner, when accepted by the Trial Court and when final decree was passed on the basis of such Advocate Commissioner’s Report only the final decree can be challenged but not the preliminary decree.
The Learned Counsel for the Respondent argued that the matter may be remanded to the Trial Court for defining the shares of Respondent Nos. 1, 2, 3A, 3B & 3C. It was further argued that the Trial Court did not define the shares of the Defendant in the preliminary decree. However, the Partition Commissioner defined their shares and prepared his Report which is beyond its authority by way of assuming and exercising power which could have been passed in preliminary decree but was not passed. In other words, according to the Learned Counsel, the Partition Commissioner assumed the authority of the Court. Accordingly, the final decree is defective but the matter could be remanded, as submitted, for defining the shares of the Defendant as above stated.
I have heard rival submissions.
Section 97 of the Code of Civil Procedure, 1908 provides:
“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.”
Three Judges Bench of the Supreme Court of India observed in Chittoori Subbanna Vs. Kudappa Subbanna [AIR (1965) SC 1325].
In Kaushalya Devi Vs. Baijnath Sayal [AIR (1961) SC 790] the Supreme Court of India observed that the whole object of enacting Section 97 of the Code of Civil Procedure, 1908 was to make it clear that any party filling aggrieved by a preliminary decree passed appeal against the decree; if it fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of appeal against the final decree which means that preliminary decree would be taken to be correctly passed. When Section 97 provides that the correctness of preliminary decree cannot be challenged if no appeal is preferred against it. It clearly provides that if it is not challenged in the appeal it would be treated as correct and binding on the parties. In such a case, an appeal against the final decree would inevitably be limited to the points arising from the proceeding taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenged. It would be idle to contain that what is the prohibited is a challenge to the factual correctness of decree on merits.
The First Appellate Court makes some queer observations. It came to the conclusion, as stated above, that the proceeding subsequent to the preliminary decree was null and illegal without understanding the concept of nullity of a procedure. The First Appellate Court was oblivious of and failed to consider and apply the provisions of 97 of the Code of Civil Procedure, 1908. Once the preliminary decree remains unchallenged in appeal and subsequently a final decree is passed, preliminary decree cannot be reopened for challenge. This is very clear and specific provisions of the Code. Secondly, the Report of the Partition Commissioner has been accepted by the Court and final decree was passed. The First Appellate Court was oblivious of the fact that once preliminary decree remained unchallenged, the same cannot be re-opened after passing of the final decree.
Submission made by Learned Counsel for the Respondent cannot be conceded in view of express provisions of Section 97 of the Code of Civil Procedure, 1908. Therefore, the matter cannot be remanded for reopening the preliminary decree which would be contrary to the express provision of law.
For the reasons stated above, this Court is opinion that the Judgment and Decree passed by the Learned Additional District Judge, 11th Court at Alipore, in Title Appeal No. 72 of 2010 should be interfered with and is hereby set aside.
The instant Second Appeal stands disposed of along with all pending applications, if any.
Let T.C.R be returned.