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