JUDGMENT

Henry Richards, C.J. - This appeal arises out of a suit for partition. On the 26th of April 1912 the Court of first instance made a preliminary decree for partition. On the 12th of June 1912 the defendants filed an appeal. On the 28th of June the first Court, notwithstanding that an appeal, against the preliminary decree was pending, made a final decree on the lines of its preliminary decree. On the 18th of April 1913 the appeal against the preliminary decree came on for hearing. Objection was taken that the appellant not having appealed against the final decree of the 28th of June 1912 could not maintain his appeal against the preliminary decree. The Court allowed this objection and dismissed the appeal. The defendants have now come to this Court in second appeal. The question which we have to decide is whether or not the fact that the defendants did not appeal against the final decree precludes the Court from hearing the appeal against the preliminary decree. Section 2, Clause 2 of the Civil Procedure Code, defines a 'decree' as including a preliminary decree. Section 96 gives a general right of appeal against decrees. Section 97 is as follows : "Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from, disputing its correctness in any appeal which may be preferred from the final decree." This last provision is not contained in the Code of 1882. I may point out that in a suit like the present more often than not the appellant against a preliminary decree Would be unable to put forward any objection against the final decree in the event of his appeal against the preliminary decree being disallowed. In all probability if the preliminary decree was sustained the final decree would follow in its line and could not be challenged. In all such cases the only object of an appeal against the final decree would be to keep the appeal against the preliminary decree alive. 1 have already given my reasons for holding that the mere fact that there is no appeal against the final decree is no reason for not hearing the appeal against the preliminary decree on its merits in the case of Muhamad Akhtar Husain Khan v. Tasadduk Husain 16 Ind. Cas. 157 : 34 A. 493 : JO A.L.J. 19. No doubt a contrary view was taken in the case of (sic) Mal v. Bishambhar Das 5 Ind. Cas. 276 : 32 A. 225 : 7 A.L.J. 210. The learned Chief Justice at page 227 says : "It seem to us that a serious anomaly would be created by the modification of the preliminary decree of June 25th, 1903,. while the final decree of June 30th, 1908, remained in force and had not been appealed against," It seems to me that these remarks proceeded upon the erroneous assumption that the final decree remained in force after the preliminary decree upon which it was based had been set aside. In my opinion in a suit for partition when the preliminary decree is set aside on appeal the final decree which is based upon it falls to the ground. If I am right in this there is no foundation for the supposed anomaly which the learned Chief Justice apprehended. It has been held by the Calcutta High Court that the final decree continued after the preliminary decree had been set aside, but all these decisions proceeded on the basis ,, that a party could challenge the correctness of the preliminary decree on an appeal from the final decree. The provision of the Code to which I have referred to above now sets this matter absolutely at rest. A party to a suit for partition who has not appealed against the preliminary decree can no longer challenge the correctness of that decree by an appeal against the final decree. In the case of Khirodamoyi Dasi v. Adhar Chandra Ghose 21 Ind. Cas. 516 : 18 C.L.J. 321. a Banch of the Calcutta High Court decided that notwithstanding the provision of Section 97 of the CPC the final decree still stands. The learned Judges after quoting the section say :

That section does not, ho