The court has discretion to allow the amendment of the memorandum of appeal under section 5 of the Indian Limitation Act.

JUDGMENT

Mookerjee, J. - This is an appeal by the plaintiffs against the preliminary decree in a suit for partition.

2. A preliminary objection has been taken to the competence of the appeal on the ground that when it was lodged in this Court, the final decree in the suit had already been made by the Subordinate Judge and yet no appeal against that final decree was then or has at any time since then bean filed. The facts material for the determination of this question may be briefly stated.

3. The preliminary decree was made or the 5th April, 1922. The Court, thereupon directed that the 18th April, 1922: be fixed for the appointment of a Commissioner and the plaintiffs were called upon to deposit the requisite fees and copies by that date. The plaintiffs failed to comply with this order and the case was adjourned from time to time. On the 1st May, 1922, the following order was recorded: "The plaintiffs have not deposited the costs for the execution of the commission as directed by the Court, so no partition could be effected. Hence the suit is dismissed." On the 11th May,, 1922, the plaintiffs lodged the present appeal in this Court against the preliminary decree which had been drawn up, signed and sealed on the 28th April, 1922; and as may be anticipated, the memorandum of appeal makes no reference to the final decree. In these circumstances, the respondents have urged that the appeal is incompetent. The contention in substance is that after the suit had been finally dismissed on the 1st May, 1922, the plaintiffs were not competent to prefer an appeal against the preliminary decree alone and that it was incumbent on them to prefer an appear as well against the final decree as against the preliminary decree. This contention is supported by the decisions in Baikunta Nath Dey v. Nawab Salimulla Bahadur (1907) 6 C.L.J. 647, Mackenzie v. Narsingh Sahai (1909) 36 Cal. 762, Khirodamoyi Dasi v. Adhar Chandra Ghose (1912) 18 C.L.J. 321, Sadhu Charan Dutta v. Haranath Dutta (1914) 20 C.W.N. 231 and Kuloda v. Ramanand AIR 1921 Cal. 109. The principle which underlies these cases is that the right of appeal from interlocutory orders ceases after the disposal of the suit. This rule is equally applicable to cases of suits in which there is first a preliminary decree and ultimately a final decree.

4. We may add that this view is not in conflict with that adopted in Ugra Narain v. Basanta (1913)18 C.L.J. 209, Nistarini v. Rai Mohan (1913) 18 C.L.J. 214, Abdul Jalil v. Amar Chand (1913) 18 C.L.J. 223, Atul v. Kunja Behari (1915) 22 C.L.J. 90, Atul v. Kunja Behary (1917) 27 C.L.J. 451, Peary Mohan v. Chandra Sekhar (1915) 19 C.W.N. 1132 and Bhagwan v. Ishan (1918) 22 C.W.N. 831. In these cases, the appeal against the preliminary decree had been lodged before the final decree was made and it was ruled that the final decree must be deemed a contingent decree, or in the words of Turner, L, J. in Shamapurshad v. Hurropurshad (1865) 10 M.I.A. 203 a subordinate and dependent decree, liable to be superseded by the modification or reversal of the preliminary decree, which was the subject-matter of an appeal before a superior tribunal when the final decree was made on the basis thereof in the primary Court. In this connection, reference may be made to the decision in Ashutosh v. Upendra (1916) 24 C.L.J. 467, Kuppuswamy v. Regmah (1912) 24 M.L.J. 190, Sir Rajah Bommadevara Venkata Narasimha Naidu Bahadur Zemindar of Pangidigudem (died) and Others Vs. Rani Venkatappaya and Others, (1919) 37 MLJ 591 , where the doctrine of dependent judgment is explained and applied. There is consequently no conflict in principle between the two series of cases as explained in Nea Hussain v. Samir AIR 1923 Cal. 282; but this does not appear have been fully appreciated in some of the cases in the books, such as, Kuriya Mal v. Bishambhar (1910) 32 All. 225,. Muhammad Akhtar v. Tasadduq (1912) 34 All. 493,, Kanahaiya v. Tirbeni (1914) 36 All. 532, Lakshmi v. Maru (1911) 37 Mad. 2