BHARTENDU Vs. YAQUB HUSAIN

JUDGEMENT

(1.) THE facts out of which this appeal arises are very shortly as follows: THEre was a suit for partition. A preliminary decree was made. Appeals right up to a Letters Patent Appeal were taken against that preliminary decree but without success and the decree of the Court which made the preliminary decree for partition was confirmed. On the case going back to the Court of first instance for the passing of a final decree, an application was made by the plaintiff in which he asked to be allowed to abandon certain share to which he had been declared entitled subject to a charge. His case apparently was that he would not press for these shares because they were not worth the charge. He also asked that having regard to certain events which had happened whilst the appeals were pending, the shares of certain other persons had been acquired by him and he asked that his share on partition might be augmented accordingly. THE Court of first instance went into these matters and granted the plaintiff s application and directed that actual partition should be made in accordance with his decision. THEre was an appeal against this decision to the lower Appellate Court. It held that no appeal lay inasmuch as no final decree had as yet been made. An appeal was then preferred to this Court and a learned Judge of this Court set aside the decree of the lower Appellate Court holding that the decision of the Court of first instance appealed against was really a second preliminary decree. We think that the decision of the learned Judge of this Court was not correct. THE Code of Civil Procedure contemplates one preliminary decree and no more. We do not for a moment suggest that any hardship has been done to the respondent by the decision of the Court of first instance. We, however, think that we should state, in our judgment, that it must be clearly understood that it will be open to the respondent to challenge the propriety of the decision of the Court of first instance, dated the 19th of August 1911, after a final decree has been made in the matter. That order, in our opinion, is only to be regarded as an interlocutory order preparatory to the making of a final decree. We accordingly allow the appeal, set aside the order of the learned Judge of this Court and restore that of the lower Appellate Court. We direct that the costs of all these proceedings shall be costs in the cause.