KUNHI MAMMAD Vs. IBRAYANKUTTY

JUDGEMENT

(1.) This appeal is by the 1st defendant and is directed against a preliminary decree for partition in a Mapla Marumakkathayam tarwad. At first, the Trial Court passed a preliminary decree for partition under the Marumakkathayam Law, but on an appeal against it, the Subordinate Judge of Tellicherry following the decision of Basheer Ahmed Sayeed J. in Mukkattumbrath Ayisumma v. Vayyaprath Pazhae Bangalavil Mayomoothy Umma (66 Law Weekly 19) held thus:

(2.) The chief contention pressed was, that the remand order not having been appealed from had become final, that it was not therefore open to the first court to pass a decree for partition under the Marumakkathayam law and that the , District Judge erred in confirming that decree on appeal. I see great force in this contention. S.105 sub-section (2) of the Civil Procedure Code provides that: "Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness".

(3.) It must therefore follow, that the Trial Court committed an error in deciding the case according to the Marumakkathayam law. By the first preliminary decree, a reservation had been made in favour of the 1st defendant in respect of item 15, but in remanding the case, though no appeal had been made against the reservation, the preliminary decree was set aside in its entirety.