CHHANGA Vs. TIRHI

JUDGEMENT

(1.) This is an appeal from an order refusing to set aside the final decree in a partition suit. A preliminary decree for partition was passed on 26 January 1925 and the Court appointed an amin to prepare lots in the light of the observation contained in the judgment within one month and directed that the plaintiff should deposit the necessary Court-fees. The fees were deposited and the amin prepared the necessary lots and then the final decree was passed on 7 April 1925. The appellant, however, appears to have taken no part in the proceedings relating to the preparation of the lots nor does he appear to have raised any objection to the lots prepared by the amin. The final decree was passed while he put in no appearance. Subsequently, on 23 April 1925, he filed an appear from the preliminary decrees which has now been dismissed by us by our order of this date. While the appeal was pending in the High Court the defendant filed an application on 18 August 1925 for setting aside the decree. The learned Subordinate Judge has dismissed this application on the ground that the applicant was fully aware of the order that the amin was to prepare lots and that it was his duty to appear and take objections. He cannot plead his ignorance when his vakil was duly informed of the date fixed.

(2.) It is contended before us that there was sufficient cause for non-appearance because the appellant was contemplating an appeal to the High Court. In our opinion such ground does not furnish any good cause for his non-appearance.

(3.) It is next contended that when an appeal was subsequently preferred the only preliminary decree which could be passed would be the one passed by the High Court and that therefore all proceedings following upon the preliminary decree made by the first Court were ultra vires and not binding on the appellant. Reliance was placed on the case of Lalman V/s. Sham Singh . In our opinion it is not necessary to consider the point raised in that case inasmuch as in the present case there can be no doubt that on 7 April 1925, when the final decree was passed there was no appeal pending is the High Court, and it is impossible to say that the Court had no jurisdiction to pass the final decree. The subsequent filing of an appeal cannot possibly have the effect of nullifying a decree which was passed with jurisdiction. Had we modified the preliminary decree on appeal the present decree would of course have to be altered.