MOHENDRA CHANDRA GHOSAL Vs. RAM RATAN TEWARI

JUDGEMENT

(1.) THIS is an appeal against a decision of the learned District Judge of Chittagong confirming a decision of the Munsif of the same place. The judgment appealed against is not really one which the learned District Judge adjudicated on the merits, because the learned Judge came to the conclusion that the appeal ought to have been disposed of on the preliminary point. The point which commended itself to the learned Judge is this. The suit out of which this appeal arises was one for specific performance of a contract and the decree was drawn up in a conditional form. However, the learned Judge came to the conclusion that the decree against which the appeal had been preferred was a preliminary decree and that the final decree having been passed no appeal lay to his Court. It is quite obvious that the learned Judge is wrong and it has not been suggested that he is right. The provisions of the Civil Procedure Code about preliminary and final decrees apply to decrees that are authorized to be drawn up as preliminary and final decrees under the provisions of the Code, and not to a decree like the one which the learned Judge considers in his own opinion as a preliminary decree.

(2.) THE judgment of the Court below must, therefore, be set aside and the case remitted to the Court of the District Judge to have the appeal re heard on the merits. THE costs of this appeal will abide the result of the re hearing by the lower Appellate Court.