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Issues: Appeal against preliminary decree after final decree, Principle of appeal from interlocutory orders, Applicability of principle in suits with preliminary and final decrees, Comparison with Allahabad High Court decision on order of remand
In the judgment delivered by the High Court of Calcutta, the appeal was made by the first party defendant in a suit for partition of joint property against the preliminary decree issued on 11th April 1907. The Court addressed a preliminary objection stating that since the final decree had been issued by the Subordinate Judge on 10th July 1907 before the appeal was presented, the appellant could not challenge the preliminary decree without appealing against the final decree. The Court found this contention valid, rendering the appeal incompetent based on the principle that the right of appeal from interlocutory orders ceases with the disposal of the suit. This principle was established in previous cases and was deemed applicable to the present situation where there was a preliminary decree followed by a final decree. The Court emphasized that challenging the preliminary decree after the final decree would disrupt the established legal process and the rights of the parties involved. The Court referred to a Full Bench decision of the Allahabad High Court regarding the filing of an appeal from an order of remand. Despite the Allahabad High Court ruling that an appeal from an order of remand can be filed even after the suit has been decided in compliance with the remand order, the Calcutta High Court maintained its stance. The Calcutta High Court highlighted the difference in practice between the two courts, stating that in their jurisdiction, it is the duty of the aggrieved party to appeal against the final decree if they wish to challenge the validity of the interlocutory order. The Court dismissed the appeal, emphasizing that the party's failure to appeal against the final decree meant they had lost the opportunity to challenge the preliminary decree effectively. The appeal was deemed to fail and was dismissed with costs.
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