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.

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:-

(i) Whether without deciding question of limitation in filing of the appeal, appeal could be dismissed on the point of maintainability of 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 Partition Suit No. 33 of 1956 was filed wherein, the appellant was defendant no. 3. A preliminary decree was passed on 23.11.1960 declaring plaintiffs 4 Aanas share and directing for preparation of final decree and in view of the preliminary decree respective shares of the parties were allotted as per the preliminary decree. No party to the suit raised any grievance against the preliminary decree and hence, no appeal was filed against preliminary decree. The learned trial court proceeded to prepare the final decree. A Survey Knowing Pleader Commissioner was appointed, who prepared his report. Objections were raised against the report by the defendant nos. 1, 2 & 3. Other defendants also filed their objections in final decree stage. Objection of the defendants-appellant was rejected.

4. The learned trial court accepted the Pleader Commissioner report and passed the judgement and final decree. Against the judgment and final decree, the defendant/appellant filed Partition Appeal No. 04 of 2017 which was delayed by 46 days and was accompanied by a petition for condonation of delay. The District Judge held that appeal is not fit to be admitted and there is no question of condoning the delay.

5. Learned counsel for the appellant submitted that appellant has not challenged correctness of the preliminary decree. The learned District Judge proceeded to interpret Section 97 of the Code of Civil Procedure wrongly and held that since the appellant has not filed appeal against preliminary decree hence, the appeal was not maintainable against final decree. However, in the instant appeal, the appellant is not disputing the correctness of the preliminary decree and the provisions does not come in the way.

6. The learned appellate court below relied upon a decision in the case of Phoolchand and another v. Gopal Lal reported in AIR 1967 SC 1470. The said decision is not at all relevant for the points in issue and has wrongly been relied upon. The learned Appellate Court further held that since the appeal itself was not maintainable and not fit to be admitted, there was no question of condoning the delay. The appeal is not hit by Section 97 of the Code of Civil Procedure. The learned Appellate Court below has misinterpreted the provision of Section 97 of the Code of Civil Procedure, which is entirely foreign to the law. The learned lower Appellate Court has relied upon the decision reported in AIR 1967 SC 1470 (Supra) which do not lay down any such proposition and the principle laid down therein are otherwise. In fact, what Section 97 bars is that if no appeal is filed against preliminary decree, the correctness of preliminary decree cannot be challenged in an appeal against final decree and Section 97 nowhere lays down that no appeal lies against final decree if no appea