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KHATIM REZA
Bhola Sahu @ Bhola Sah son of Late Jagdish Sahu – Appellant
Versus
Chandu Sahu son of Late Kishan Sahu – Respondent
JUDGMENT :
Khatim Reza, J.
This Second Appeal has been filed by the defendant no. 3/ appellant against the judgment and decree dated 18.04.2017 passed by the learned District Judge, Samastipur in Partition Appeal No. 04 of 2017 affirming the final judgement and decree dated 20.09.2016 passed by the learned Sub Judge III, Rosera in Partition Suit No. 33 of 1956 whereby the learned appellate court has held that the appeal is not maintainable in view of the provision contained in Section 97 of the Code of Civil Procedure and also dismissed the petition for condoning the delay as the appeal itself is not maintainable.
2. On 28.03.2023, the following substantial questions of law were formulated while admitting the appeal:-
(ii) Whether filing of appeal against final decree is maintainable when the appellant has not challenged the preliminary decree?
(iii) Whether objection against the Pleader Commissioner's report in a final decree proceeding by the appellant would entitle him to file appeal against the final decree?
3. A Partition Suit bearing
An appeal against a final decree is maintainable even if no appeal is filed against the preliminary decree, provided the correctness of the preliminary decree is not challenged.
The court ruled that an appeal against a preliminary decree remains valid even after a final decree, emphasizing the need to assess the merits of the case.
The court ruled the necessity of hearing appeals against preliminary and final decrees simultaneously in partition suits to ensure a just resolution of shares and rights, emphasizing that the final d....
An application under Article 227 challenging an order accepting a Partition Commissioner's Report is maintainable until a final decree is passed in the partition suit.
Point of law: It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to....
Execution of final decree – claim of share - first respondent cannot take shelter under this provision for seeking enhancement when she herself admits to have taken possession and received money by e....
Suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable dela....
A partition suit concludes with the final decree, and parties cannot seek modification of shares based on subsequent legislative changes after the final decree is passed.
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