Judgment

A supplementary preliminary decree passed in a suit for partition was challenged in appeal with a delay of 12 days. The court below has by the orders impugned refused to condone the delay and dismissed the appeal as not maintainable. The court below was perfectly justified in stating that only an appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure would lie. The Civil Miscellaneous Appeal filed by the petitioner under Order 43 Rule 1 of the was obviously not maintainable.

2. The petitioner has a grievance against the supplementary preliminary decree which could be canvassed in an appeal therefrom. A fresh appeal to be filed against the supplementary preliminary decree for partition would entail in further delay. I therefore set aside Exts.P7 and P8 orders impugned in this Original Petition. The Civil Miscellaneous Appeal is sent back to the lower appellate court to enable the appellants therein to file OP(C) 2783/12 2 an application for conversion as an appeal suit.

3. The court below shall allow any application for conversion filed in C.M.A.No.45 of 2010 on the file of the Court of the Subordinate Judge of Thalassery. The court below shall the