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.

JUDGMENT :

Devashis Baruah, J

Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the appellants and Mr. A. R. Sikdar, the learned counsel appearing on behalf of the respondent No.1. None appears on behalf of the other respondents on call.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 10.05.2024 passed by the learned District Judge, Bongaigaon (hereinafter referred to as the learned First Appellate Court) in Title Appeal No.6/2022 whereby the appeal was dismissed affirming the judgment and decree dated 07.03.2019 passed by the learned Civil Judge, Bongaigaon (hereinafter referred to as the learned Trial Court) in Title Suit (P) No.31/2014.

3. It is seen from the records that vide an order dated 30.08.2024, the learned Coordinate Bench of this Court had admitted the instant appeal by formulating three substantial questions of law which are reproduced herein under:

“(i) Whether, the judgment and preliminary decree dated 07.03.2019 is at all passed in accordance with Mohammedan Law giving 50% share to the only daughter/plaintiff in presence of her 4 (four) brothers whereas as per Mohammedan Law her specified share is 1/9^th only over the total property of late Sahar Ali, her predecessor?

(ii) Whether the learned first appellate Court is correct in dismissing the first appeal of the defendants against preliminary decree on the point of delay whereas the delay was already condoned vide order dated 18.07.2022 in Misc. Case No.09/2022?

(iii) Whether the learned first appellate Court committed wrong by misunderstanding and by misinterpreting S/97 and as such the judgment and decree dated 10.05.2024 is not at all sustainable in the eye of law?”

4. Before deciding the three substantial questions of law, it is apposite herein to take note of that the learned First Appellate Court vide the impugned judgment and decree 10.05.2024 did not decide the appeal on any other aspects except on the question of maintainability of the appeal in view Section 97 of the Code. The learned counsel appearing on behalf of the appellants submitted that inadvertently, the first two substantial questions of law so formulated by this Court was proposed though the learned First Appellate Court had only dismissed the appeal on the ground of maintainability. She therefore submitted that taking into account the learned First Appellate Court had dismissed the appeal under Section 97 of the Code, the third substantial question of law so formulated should be construed as the sole substantial question of law framed in the present proceedings. In addition to that, the learned counsel further submitted that as regards the first substantial question of law so formulated, a ground of objection has already been taken in the memo of appeal preferred before the learned First Appellate Court which was however not taken into consideration while dismissing the appeal on the ground of being not maintainable.

5. In the backdrop of the submissions made, this Court would deal with the substantial questions of law so formulated by the learned Coordinate Bench of this Court vide its order dated 30.08.2024. This Court further finds it relevant to take note of that in view of the submission so made by the learned counsels appearing on behalf of the parties, the third substantial question of law would be taken up first for disposal and depending upon the decision in the third substantial question of law, the other two substantial questions of law so formulated would be decided.

6. Taking into account the above, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

7. For the sake of convenience, th