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 decree does not nullify the merits of the preliminary decree.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. K.A.Guru, learned counsel for the Petitioner and Mr. P.K.Satapathy, learned counsel for Opposite Parties.

2. Present CMP is directed against order dated 12^th April 2024 of learned Additional District Judge, Kuchinda passed in RFA No.05 of 2023, wherein RFA No.92 of 2006 and RFA No.05 of 2023 have been clubbed together for hearing.

3. The Plaintiff who is the present Petitioner, filed the suit praying for a decree of partition. The preliminary decree was issued on 30^th November 2004 and challenging the same RFA No.92 of 2006 was preferred before the 1^st Appellate Court by the Defendants. Said RFA No.92 of 2006 was dismissed for default on 4^th February 2019 and subsequently restored on 24^th July 2023. But in the meantime, the final decree proceeding was completed drawing final decree dated 12^th April 20234. After restoration of RFA No.92 of 2006 on 24^th July 2023, RFA No.05 of 2023 was filed challenging the final decree. Since both the appeals were pending, one against preliminary decree and other against final decree before the same Court, the Defendants filed a petition praying for hearing of both the appeals analogously. The same was allowed vide impugned order dated 12^th April 2024 (Annexure-5) which is subject matter of challenge in present CMP.

4. The Plaintiff who is the Respondent in the appeal objected analogous hearing of both the appeals mainly on the ground that once final decree has been drawn, the appeal against preliminary decree cannot be allowed to sustain its life particularly when at the time of drawing the final decree the appeal against preliminary decree was dismissed for default. According to Mr. Guru, learned counsel for the Petitioner (Plaintiff), the Defendants had to take all such grounds in the appeal against preliminary decree to be available in the appeal against final decree and consequently the appeal against preliminary decree should be dropped.

5. Mr. Satapathy, learned counsel for the Defendant (Opposite Parties) submits that there is no flaw in the order of learned 1^st Appellate Court directing for analogous hearing of both the appeals because after drawing of the final decree, the preliminary decree is merged with the same and particularly in the present case though final decree has been drawn the possession as per the final decree has not been delivered yet.

6. In Sital Parshad & Anr vs. Kishori Lal, AIR 1967 SC 1236 , the Hon’ble Supreme Court have observed as follows:-

5. The question before us in the present appeal, therefore, is which of these two views is correct. Before we consider this question we may state certain well-settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial court. Generally speaking, the decree of the appellate court supersedes the decree of the trial court even when it confirms that decree and therefore it is well settled that only the appellate court can amend the decree thereafter : [see Muhammad Sulaiman Khan v. Muhammad Yar Khan [ILR (1888) 11 All 267] ]. It is equally well settled that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate court may not have extended the time for payment provided in the preliminary decree, where no final decree has been prepared in between : (see Jowad Hussain v. Gendan Singh [(1926) 53 IA 197] ). This applies even to a case where the decree of the appellate court is made more than three years after the time fixed for payment in the pr