Supreme Court of India
MADDINENI KOTESWARA RAOversusMADDINENI BHASKARA RAO AND ANR.
- Citation
- 2009 INSC 699
- Decided
- 5 May 2009
- Disposal
- Dismissed
- Bench
- TARUN CHATTERJEE
Holding
In a partition suit, the court may adjudicate the genuineness of a will and re‑allocate shares at the final decree stage without a separate probate suit, and Section 97 CPC does not bar such adjudication.
Summary
The appellant and respondents, siblings of a deceased father who was also a joint family manager, were parties to a partition suit concerning family property. While the suit was pending, the father executed a registered will bequeathing his one‑fourth share to the respondent, and subsequently died. The trial court, after a preliminary decree allocating equal shares, examined the will’s genuineness, granted probate, and at the final decree allotted two shares to the respondent based on the will. The appellant challenged this, arguing that the will should have been probated in a separate suit and that Section 97 of the CPC barred revisiting the preliminary decree. The Supreme Court held that a partition suit remains open until the final decree, allowing the court to consider testate succession and adjust shares without a separate suit, and that Section 97 CPC does not apply to preclude such adjudication. Consequently, the appeal was dismissed.
Issues considered
- The court's jurisdiction to consider the validity of a will and re‑allocate shares at the final decree stage in a partition suit.
- Whether a separate probate suit is required to enforce a will executed by a deceased party during pendency of a partition suit.
- The applicability of Section 97 of the Code of Civil Procedure, 1908, in precluding challenges to a preliminary decree in a final‑decree appeal.
- The permissibility of amending shares after the death of a party who was allotted a share in the preliminary decree.
Legislation cited
Subjects
partition suitjoint family propertypreliminary decreefinal decreeprobatewilljurisdictionSection 97 CPCsuccessioncivil procedure
Judgment
[2009] 8 S.C.R. 912
MADDINENI KOTESWARA RAO
_.•
A
V.
MADDINENI BHASKARA RAO AND ANR.
(Civil Appeal No. 3233 of 2009)
MAY 05, 2009
B
[TARUN CHATIERJEE AND HARJIT SINGH BEDI, JJ.]
••
;
Partition - Suit for, in respect of joint family property -
Jurisdiction of Court to adjust shares at the final decree stage
c - Preliminary decree passed whereby the parties as well as
their father found entitled to 1!4th share each - While partition
suit was pending for passing of preliminary decree, father of
the parties executed a registered Will bequeathing his share
in favour of the respondent and died thereafter - Concurrent
~-
D findings of fact by Courts below that the Will was genuine -
Such finding of fact not challenged - Entitlement of
respondent to plead for grant of probate of the Will in the
partition suit and consequent re-adjustment of shares vide final
decree - Held: Suit for partition stands disposed of only with
E passing of the final decree - Respondent was entitled to plead
for grant of probate of the Will in the partition suit itself and
was not required to file a separate suit therefor - However, in ).
facts and circumstances of the case, respondent was
precluded from claiming more shares on basis of the Will or
leading evidence to prove the Will before passing of the
F
preliminary decree - Courts below were thus justified in
passing final decree by dividing the joint family property into
four equal shares and allotting two shares in favour of
respondent on basis of the Will executed by deceased father
of the parties.
G
Dispute arose over a partition deed allegedly ·~--
executed in 1966 in respect of joint family property.
Respondent filed suit for partition and also for a
declaration that the alleged partition deed of 1966 was
H 912
MADDINENI KOTESWARA RAO v. MADDINENI 913
BHASKARA RAO
l
.\.
sham, void and inoperative. Meanwhile, the father of the A
parties executed a registered Will bequeathing his share
in the property in favour of the respondent and died
shortly thereafter. The suit was decreed and a preliminary
decree was passed whereby the parties as well as their
deceased father were found entitled to 1/4th share each B
and the alleged partition deed of 1966 was declared
I inoperative, void and sham. Respondent, placing reliance
upon the said Will, filed application for drawing up the
final decree with prayer to divide the joint family property
into four equal shares and to allot two shares to him. The c
trial court found the Will to be genuine and on
consideration of the same, passed final decree allotting
'--..
two shares to the respondent.
The High Court declined to interfere with the order
of the trial court and dismissed the civil revision petition D
filed by the appellant.
In appeal to this Court, the question which arose for
consideration was whether the Courts below erred in
allotting two shares in favour of the respondent on basis E
of the Will executed by the deceased father of the parties
-..\ and whether the genuineness of the Will could be decided
by the Court in a suit for partition or had to be
' adjudicated in a separate suit.
Dismissing the appeal, the Court F
HELD: 1.1. A suit for partition stands disposed of
only with the passing of the final decree. In a partition suit,
the court has the jurisdiction to amend the shares
suitably, even if the preliminary decree has been passed, G
---1 if some member of the family to whom an allotment was
made in the preliminary decree dies thereafter. The share
of the deceased would devolve upon other parties to a
_.,. suit or even a third party, depending upon the nature of
the succession or transfer, as the case may be. The H
914 SUPREME COURT REPORTS [2009] 8 S.C.R.
A validity of such succession, whether testate or intestate, }.
or transfer, can certainly be considered at the stage of
final decree proceedings. [Para 1OJ [920-B-D]
1.2. The contention raised that the deceased father
of the parties had executed the Will and died before
8
passing of the preliminary decree, and accordingly the
Courts below were not justified in taking into
consideration the question regarding the genuineness of
the Will of the deceased father of the parties and allot two
shares to respondent in the final decree, is of no
C substance. In a suit for partition, a party who is claimih~
share in the plaint scheduled property, is entitled to plead
for grant of probate of the Will executed by the deceased
father of the parties and for which no separate suit
needed to be filed. In the present case, while re-allotting
D the shares of the parties, the trial court had framed issues
on genuineness of the Will of the deceased father of the
parties and decided that the Will was genuine after
considering the evidence on record including examining
the evidence of the scribe and attestor in respect of the
E Will in question. This finding of fact regarding the
genuineness of the Will was affirmed by the High Court
which was not agitated in this appeal. That being the f..
position, and considering the concurrent findings of fact
it was not open for this Court to interfere with the same
F if it was not found to be perverse or arbitrary. As regards
the contention that even if entitlement of share on basis
of the Will was available at the stage of preliminary
decree, the respondent could not have any adjudication
thereof at the final decree stage as it gave a go-by to such
G entitlement, though it is true that a Will was executed by
the deceased father of the parties when the suit was t- _
pending for passing a preliminary decree in respect of the
plaint scheduled property of the parties and also for
declaration that the alleged partition deed executed was
H sham, void and inoperative in law, but until and unless
MADDINENI KOTESWARA RAO v. MADDINENI 915
BHASKARA RAO
•
)
the alleged partition deed was declared inoperative, it was A
,. not open to any one to claim more shares on the basis
of a Will in respect of the plaint scheduled property. It
was also not open to the respondent to lead any evidence
to prove the Will before passing the preliminary decree,
since the suit itself was for a declaration that the partition B
•
deed was void, inoperative and a sham transaction and
1 that being the factual position, there was no point in
proving the Will before the said declaration was granted
by the court. If ultimately, the court came to the
conclusion that there was a partition as evidenced by the c
partition deed of 1966, the evidence in respect of the Will
would have become totally irrelevant It was only under
those circumstances, the proof of the Will was withheld.
[Paras 11, 12, 13 and 14] [921-C-E; 922-C-H; 923-A, D-H]
' _A
1.3. So far as the contention raised regarding D
! applicability of s.97 CPC, a plain reading of the provision
I would make it clear that if a party aggrieved by a
, preliminary decree passed after the commencement of
'
the CPC does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal E
which may be preferred from the final decree. This is not
... the position in this case. [Para 15] [924-C-D]
,
Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992
and Kaushalya Devi & Ors. v. Baijnath Saya/ (deceased) & F
Ors. AIR 1961 SC 790, held inapplicable.
Phoolchand v Gopal Lal AIR 1967 SC 1470, relied on.
Case Law Reference:
G
AIR 1967 SC 1470 relied on Para 10
~ -~
AIR 1963 SC 992 held inapplicable Para 14
AIR 1961 SC 790 held inapplicable Para 16
H
916 SUPREME COURT REPORTS [2009] 8 S.C.R.
'
~
A CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3233 of 2009. ·~
From the Judgment & Order dated 2610.2006 of the High
Court of Andhra Pradesh at Hyderabad in C.R.P. No. 986 of
2006.
B
R. Sundaravaradan, K. Subba Rao, Aniruddha P. Mayee
for the Appellants.
;
Pramjit Singh Patwalia, Jaideep Gupta, T.V. Ratnam D.
c Bharat Kumar, M. lndrani, Abhijit Sengupta for the
Respondents.
The Judgment of the Court was delivered by
TARUN CHATTERJEE, J.1. Leave granted. ~
D
2. This appeal by special leave is directed against the
judgment and order dated 26th of October, 2006 of the High
Court of Andhra Pradesh at Hyderabad, wherein the High Court
had dismissed the Civil Revision Case being CRP No. 986 of
E 2006 filed before it by the appellant.
3. The relevant facts leading to the present appeal are as
follows: •
One M.Veera Raghavaiah, the father of the appellant
F (since deceased) and the respondents, had three sons and a
daughter. M.Veera Raghavaiah, the deceased father of the
appellant, was acting as a manager and karta of the joint family
till 1966. Thereafter, he fell sick and became incapable of
managing the joint family property and joint family debts. The
G appellant herein came forward and agreed to take up the
responsibility. Accordingly, all the parties agreed to execute a ~- .
power of attorney in favour of the appellant. But, the appellant
insisted on executing a separate deed instead of a power of
attorney saying that a power of attorney may not be effective
H and it can be terminated at any point of time. The respondents
MADDINENI KOTESWARA RAO v. MADDINENI 917
BHASKARA RAO [TARUN CHATIERJEE, J.]
s herein and the deceased father out of confidence signed on
the said deed which was registered on 17th of May, 1966,
A
without knowing its contents. However, they later came to know
that the said deed was styled as. a partition deed between the
parties. On 21st of April, 1978, M. Bhaskara Rao, one of the
sons of the deceased father and the respondent no.1 herein B
(hereinafter referred to as the respondent), filed a suit for
partition of the plaint scheduled property claiming 1/4th share
in the same and also for a declaration that the alleged deed of
partition dated 17th of May, 1966 was sham, void and
inoperative and for other incidental reliefs in the Court of c
Principal Subordinate Judge, Vijayawada. The suit was
decreed by the Principal Subordinate Judge, Vijayawada and
a preliminary decree dated 1st of October, 1986, was passed
whereby all the parties including the deceased father of the
,I
parties were found to be entitled to 1/4th share each in respect D
of the plaint scheduled property. It was further declared by the
trial court that the partition deed dated 17th of May, 1966 was
inoperative, ineffective, void and a sham transaction.
4. When the aforesaid suit was pending, M.Veera
Raghavaiah (since deceased) being the father of the parties,· E
executed a registered Will on 21st of March, 1984 bequeathing
his 1/4th share in respect of the plaint scheduled property in
, •• favour of the respondent and also a sum of Rs.10,000/- was
allotted to his daughter/ respondent No.2 herein. M. Veera
Raghavaiah died on 17th of January, 1985. While the suit was F
pending, more precisely on 25th of February, 1985, the
respondent filed a photostat copy of the V\(ill in the trial court
praying that the probate of the will bequeathing his 1/4th share
in respect of the plaint scheduled property to the respondent
and Rs. 10,000/- to his daughter be granted. When the G
photostat copy of the Will was filed by the respondent for grant
--1
of probate, it was made clear by all the parties that the parties
on record were sufficient and there was no need of impleading
any other legal representatives. An endorsement to this effect
was also made by the counsel for the appellant stating that "no H
918 SUPREME COURT REPORTS [2009] 8 S.C.R.
A L.Rs. need be added". In view of such stand taken by the l
parties before the trial Court and no objection having been
raised upto this Court, we refrain from going into the question
whether probate can be granted to the Will in question in the
absence of any other heirs and legal representatives of the
B deceased, if there be any.
5. On 4th of November, 1986, the appellant went in appeal
before the High Court of Andhra Pradesh at Hyderabad against
the preliminary decree declaring 1/4th share each to the parties
c including the share in favour of the deceased father of the
appellant before the High Court which came to be registered
as AS.No. 2879 of 1986 which was also dismissed by a
learned Judge of the High Court that had confirmed the
judgment and decree of the trial cou!Q Feeling aggrieved, the
appellant also filed a Letters Patent Appeal which came to be
D registered as LPA No.154 of 1997 before the Division Bench
of the High Court. It would be evident from the record that while
the LPA was pending, the respondent on 11th of February,
1988 filed an application for drawing up the final decree in
respect of the plaint scheduled property in which he applied for
E appointment of a Commissioner to divide the plaint scheduled
property into four equal shares and to allot two shares to the
respondent as his father M.Veera Raghavaiah had executed
~
a registered Will dated 21st of March, 1984. The appellant
resisted the said application on numerous grounds.
F
6. After the LPA was dismissed by the Division Bench of
the High Court, the trial court before whom the application for
drawing up the final decree was pending, allowed the same
filed by the respondent and passed a final decree allotting two
shares in respect of the plaint scheduled property to the
G
respondent after considering the Will executed by the deceased
father of the parties. It may be kept on record that the trial court t.
went into the question of the genuineness of the Will executed
by the deceased father of the parties and after considering the
evidence on record including examining the scribe and attester
H
MADDINENI KOTESWARA RAO v. MADDINENI 919
BHASKARA RAO [TARUN CHATIERJEE, J.]
)
~ of the Will found the Will to be genuine and granted probate of A
the Will. The trial court also recorded the findings to the effect
that the Will was duly proved as required in law.
7. On 18th of February, 2006, the appellant approached
the High Court by filing a Civil Revision Case being CRP No.
B
986 of 2006 contending that the Trial Court erred in allotting
tWo shares to the respondent relying on the Will of the deceased
" father of the parties which amounted to alteration of the
preliminary decree passed by the trial court. The High Court
declined to accept this contention of the appellant. The High
Court further observed that in a suit for partition more than one
c
preliminary decree can be passed. The High Court also
observed that a suit for partition stands disposed of, only with
the passing of the final decree. It is competent for the court to
,,,,. examine the validity of the transfers, testate or intestate
successions in the final decree proceedings, of which D
examination had not been done before the passing of the
preliminary decree, to take into consideration the changes
occurring on account of death of a party or transfer made by
him. Therefore, the High Court and the trial court were justified
in taking into account the Will of the deceased father while E
passing the final decree in the partition suit. The High Court
placed reliance on a·decision of this Court in Phoolchand v.
~
,/
Gopa/ Lal (AIR 1967 SC 1470). The High Court further held
that alteration of the preliminary decree would occur only if the
extent of shares allotted to each parties or the items identified F
for partition, wert: altered. No such alteration had taken place
in the present case. A mere adjustment of the shares of the
parties does not bring about any alteration in the preliminary
decree. Accordingly, the High Court had refused to interfere
with the order of the trial court in revision. G
-1 8. Feeling aggrieved, the appellant filed a special leave
petition, which on grant of leave, was heard in the presence of
the learned counsel for the parties.
9. The only question that needs to be decided in this H
920 SUPREME COURT REPORTS [2009] 8 S.C.R.
A appeal is whether the High Court as well as the trial court were
justified in allotting two shares in favour of the respondent on
•
'
the basis of the Will executed by the deceased father of the
parties and whether the genuineness of the Will could be
decided by the Court in a suit for partition or not or by a
B separate suit.
10. It is well settled that a suit for partition stands disposed
of only with the passing of the final decree. It is equally settled
that in a partition suit, the court has the jurisdiction to amend
the shares suitably, even if the preliminary decree has been
c passed, if some member of the family to whom an allotment
was made in the preliminary decree dies thereafter. The share
of the deceased would devolve upon other parties to a suit or
even a third party, depending upon the nature of the succession
or transfer, as the case may be. The validity of such succession,
D whether testate or intestate, or transfer, can certainly be
considered at the stage of final decree proceedings. An
inference to this effect can suitably be drawn from the decision
of this Court in the case of Phoo/chand v. Gopal Lal (AIR 1967
SC 1470). In that decision, it was observed as follows:
E
"There is nothing in the Code of Civil Procedure which
prohibits the passing of more than one preliminary decree
,.\.
if the circumstances justify the same and that it may be
necessary to do so particularly in partition suits when after '
F the preliminary decree some parties die and shares of
other parties are thereby augmented ... it would in our
opinion be convenient to the court and advantageous to
the parties, specially in partition suits, to have disputed
rights finally settled and specifications of shares in the
preliminary decree varied before a final decree is
G
prepared. If this is done there is a clear determination of
the rights of the parties to the suit on the question in dispute
and we see no difficulty on holding that in such cases there
·-
is a decree deciding these disputed rights, if so, there is
no reason why a second preliminary decree correcting the
H
MADDINENI KOTESWARA RAO v. MADDINENI 921
BHASKARA RAO [TARUN CHATIERJEE, J.]
)
J shares in a partition suit cannot be passed by the court." A
11. Therefore, relying on the decision of this Court and
following the principles as aforesaid, both the courts below
granted two shares to the respondent in respect of which we
do not find any reason to differ. The courts below were also
B
justified to hold that the two shares granted at the final stage
could be treated as two preliminary decrees which are
permissible in law. However, the learned counsel for the
appellant pointed out that in Phoo/chand's Case (supra), the
death of two parties had taken place after the preliminary
decree was passed. A new circumstance had emerged after
c
the passing of the preliminary decree, that is why the court had
passed a second preliminary decree modifying the shares of
the other parties, accordingly, based on the Will executed by
,-l
the deceased. But, in the present case their father had executed
the Will and died before the passing of the preliminary decree. D
Therefore, no new circumstance has arisen after the passing
of the preliminary decree. Accordingly, the appellant contended
that the High Court as well as the trial court were not justified
in taking into consideration the question regarding the
genuineness of the Will of the .deceased father of the parties E
and allot two shares to respondent in the final decree.
~
12. So far as the first question, as noted herein earlier, is
/
concerned, we are of the view that such a contention of the
learned counsel for the appellant was of no substance. F
According to the learned counsel for the appellant. as noted
herein earlier, the genuineness of the Will of the deceased
father of the parties not having been proved in a separate suit,
the High Court as well as the trial Court had specifically
considered this point before passing the final decree. As noted
G
herein earlier, in Phoo/chand vs. Gopal Lal (supra), this
' -~ question has been squarely answered. In the said decision, the
appellant also filed a suit for partition of the joint property in
,which a preliminary decree was passed before passing a final
decree. The father and the mother of the appellant died and
H
922 SUPREME COURT REPORTS [2009] 8 S.C.R.
A the brother of the appellant claimed that he was entitled to the ...
share of the father as the same was declared by way of a Will
executed by the father and the appellant claimed his right in the
share of the mother as the same was sold to him by the mother.
This question relates to the preliminary shares of the parties
B which were redistributed, however, the trial court did not prepare
another formal preliminary decree on the basis of this re-
distribution of shares. The appeal was taken to the High Court
by the brother of the appellant against distribution which finally
came to this Court and this Court held that Will executed by the
c father in favour of the brother of the appellant was genuine and,
therefore, the appellant was not entitled to take advantage of
the share of the mother and the same must be distributed
equally. In view of the aforesaid decision of this Court, it ls clear
that in a suit for partition, a party who is claiming share in the
plaint scheduled property, is entitled to plead for grant of -/...
D
probate of the Will executed by the deceased father of the
parties and for which no separate suit needed to be filed.
13. While re-allotting the shares of the parties, the trial court
had framed the issues on the genuineness of the Will of the
E deceased father of the appellant and decided that the Will was
.genuine after considering the evidence on record including
examining the evidence of the scribe and attestor in respect ~
of the Will in question. This finding of fact regarding the
'
genuineness of the Will of the father affirmed by the High Court
F was also not agitated before us in this appeal. That being the
position, and considering the concurrent findings of fact it was
also not open for us to interfere with the same if it is found not
to be perverse or arbitrary. In view of our discussions made
hereinabove and applying the principles laid down in the
G aforesaid decision of this Court, namely, Phoo/chand vs. Gopal
Lal (supra), we do not find any substance in the arguments of t- '
the learned counsel for the appellant.
14. A further contention was advanced by the learned
counsel for the appellant that if certain entitlement of share even
H on the basis of the Will was available to the parties at the stage
MADDINENI KOTESWARA RAO v. MADDINENI 923
BHASKARA RAO [TARUN CHATIERJEE, J.]
~ of preliminary decree, but such entitlement was given a go-by A
by one of the parties, the parties who have already given a go-
by of such entitlement cannot have any adjudication at the final
decree stage. In support of this contention, the learned counsel
appearing on behalf of the appellant had drawn our attention
to Section 97 of the CPC and also on a decision of this Court B
in the case of Venkata Reddy & Ors. vs. Pethi Reddy [AIR
1963 SC 992]. In our view, so far as the decision of this Court
in Venkata Reddy's case is concerned, there is no applicability
of the principles laid down in that decision in the present case.
In that decision, the sale made by the Official Receiver during c
the insolvency of the father of the appellant was the subject
matter of a final decision by a competent court inasmuch as
the court had decided that the sale was of no avail to the
purchaser as the Official Receiver had no power to that sale.
Nothing more was required to be established by the appellants D
before being entitled to the protection of the first proviso to
Section 28-A of the Provincial Insolvency Act. As noted herein
earlier, we are unable to find any applicability of this decision
in the facts of this case. It is true that a Will was executed by
the deceased father when the suit was pending for passing a
E
preliminary decree in respect of the plaint scheduled property
of the parties and also for declaration that the alleged partition
,4 deed executed was sham, void and inoperative in law. Until and
unless the partition deed is declared in operative, it is not open
to one who claimed more shares on the basis of a Will in
respect of the plaint scheduled property. In our view, it was also F
not open to the respondent to lead any evidence to prove the
Will before passing the preliminary decree, since the suit itself
was for a declaration that the partition deed was void,
inoperative and a sham transaction and that being the factual
position, there was no point in proving the Will before the said G
....... ·... declaration was granted by the court. If ultimately, the court
comes to the conclusion that there was a partition as evidenced
by the partition deed dated 17th of May, 1986, the evidence in
respect of the Will would totally become irrelevant. It was only
under those circumstances, the proof of the Will was withheld. H
924 SUPREME COURT REPORTS [2009] 8 S.C.R. .
A That being the position, this decision is distinguishable on facts +'
and also on law. So far as Section 97 of the CPC is concerned
again, we do not find that the said provision is at all applicable
to the present case. To understand the problem, it would be
appropriate for us to produce Section 97 of the CPC which runs
B as under:-
"Appeal from final decree where no appeal from
preliminary decree - Where any party aggrieved by a
preliminary decree passed after the commencement of this
Code does not appeal from such decree, he shall be
c precluded from disputing its correctness in any appeal f-
which may be preferred from the final decree."
15. A plain reading of this provision would make it clear
that a party aggrieved by a preliminary decree passed after the
D commencement of the CPC 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 is
not the position in this case. Here admittedly, a preliminary
decree was passed declaring the share of the parties including
E the share in favour of the deceased father of the parties. That
preliminary decree is final, but on the death of the father of the
parties, the shares allotted to the deceased father of the parties j.
would fall either to the parties in equal shares or if by Will or by
any form of transfer, such share has been given to one of the
F parties. Therefore, in that situation, the respondents could not
have filed any appeal against the preliminary decree because
(1) at this stage, the father was very much alive and only on the
death of the father, the question of getting one more share that
is the share of the father would come into play and (2) the
declaration made in the preliminary decree by the Court was
G
also accepted by the parties at that stage. Therefore, Section
~
97 of the CPC could not be an aid to the appellant and
therefore, the submission of the learned counsel for the
appellant in this Court cannot be accepted and therefore it is "
rejected.
H
MADDINENI KOTESWARA RAO v. MADDINENI 925
BHASKARA RAO [TARUN CHATTERJEE, J.]
)
-
16. Before parting with this judgment, we may refer to a A
decision of this Court in the case of Kaushalya Devi & Ors.
vs. Baijnath Saya/ (deceased) & Ors. [AIR 1961 SC 790] on
which reliance was also placed by the learned counsel for the
appellant. The learned counsel for the appellant also had drawn
our attention to paragraph 9 of the said decision. At this stage, B
it would be appropriate if we reproduce Para 9 on which strong
• reliance was placed by the learned counsel for the appellant.
Para 9 of the said decision runs as under:-
"If the preliminary decree passed in the present
proceedings without complying with the provisions of Order
c
.32 Rule 7(1) is not a nullity but is only voidable at the
•instance of the appellants, the question is ;can they seek .
to avoid it by preferring an appeal against the final decree
;- ? It is in dealing with this point that the bar of Section 97
of the Code is urged against the appellants. Section 97 D
which has been aaded in the Code of Civil Procedure,
1908 for the first time provides that where any party
aggrieved by a preliminary decree passed after the
commencement of the Code does not appeal from such
decree he shall be precluded from disputing its correctness E
in any appeal which may be preferred from the final
-i decree."
I
17. We have already explained in this judgment that
Section 97 of the CPC is not applicable to the facts and F
circumstances of the present case and, therefore, we do not
find any applicability of Paragraph 9 of the decision thereof in
this decision of this Court in the facts and circumstances of the
present case.
_....
,._
18. No other point was raised by the learned counsel for G
the parties before us. Accordingly we do not find any merit in
this appeal. The appeal is thus dismissed. There will be no
order as to costs.
B.B.B. Appeal dismissed. H
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