In a partition suit, Court has jurisdiction to amend shares suitably, even if preliminary decree has been passed

If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is; can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of Section 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908 for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree… Read More In a partition suit, Court has jurisdiction to amend shares suitably, even if preliminary decree has been passed

Whether a preliminary decree is regarded as embodying the final decision of the Court passing that decree?

In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992, reversing a decision of the Madras High Court in AIR 1956 Mad 413, Mudholkar, J. said (at p. 995) : “A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such… Read More Whether a preliminary decree is regarded as embodying the final decision of the Court passing that decree?

S. Esabella Vs. C. Thankarajan [SC 2017 DECEMBER]

KEYWORDS:- PARTITION CASE-impracticability of partitioning- DATE:-DECEMBER 12, 2017 Appellant, having not challenged the preliminary decree, may challenge the final decree in Partition case  SUPREME COURT OF INDIA S. Esabella Vs. C. Thankarajan [Civil Appeal No(S). 21804-21805/2017 arising from SLP (C) Nos.7476-7477 of 2015] KURIAN, J. 1. Leave granted. 2. The appellant has approached this Court… Read More S. Esabella Vs. C. Thankarajan [SC 2017 DECEMBER]