ABDUL SATTAR Vs. BANSGOPAL

JUDGEMENT

(1.) 1. A preliminary objection has been taken that this appeal is incompetent, because it is directed against a preliminary decree for sale and no appeal against the final decree, which was passed before this second appeal was filed, has been presented. In Mackenzie v. Narsingh Sahai [1909] 36 Cal. 762, it was held that when after a final decree had been passed, an appeal was preferred against the preliminary decree only, it was not open to the appellant to challenge the correctness of the preliminary decree without preferring an appeal against the final decree.

(2.) IT was pointed out that if the appeal against the preliminary decree succeeded the final decree would still stand. A similar view has taken in Kulada Prosad v. Ramananda Pattanaik A.I.R. 1921 Cal. 109, in which Khirodamoyee Dasi v. Adhar Chandra Ghose [1913] 18 C.L.J. 321, was distinguished on the grounds that it dealt with a case in which the appeal against the preliminary decree had been preferred before the final decree had been passed, and that it must be, assumed that the subsequent proceedings were subject to the result of the appeal against the preliminary decree. The latter decision shows that the existence of a final decree, not appealed against, is not an insuperable bar to an appeal against a preliminary decree being allowed. Another reason has, however, been given in Salim v. Hajira Bibi A.I.R. 1928 Cal. 325, in which it was held that, when a defendant appealed against an order of remand after the suit had been decided against him on the merits, his appeal was not maintainable, that reason being his consent to the proceedings subsequent to the remand, implied by his not appealing against the order of remand during those proceedings. But there is not in every case such an implied consent. Certainly, in the case with which I am dealing there is no implied consent to the proceedings after the final decree. The facts speak for themselves. The preliminary decree was passed on 21st September 1926; the first appeal was filed on 8th November 1926; while it was pending decision, on 25th April 1927 application for a final decree was made but time was granted on the application of the present appellant till the first appeal was decided; the appeal was decided; that appeal was decided on 29th August 1927; and the final decree was passed on 6th September 1927.