An unappealed preliminary decree cannot be challenged in an appeal from the final decree.

The plaintiffs brought a partition suit.

On 20 February 2003, the Trial Court passed a preliminary decree declaring the plaintiffs’ shares but not declaring the shares of certain defendants; no appeal was filed against that decree.

A Partition Commissioner later submitted a report, which the Trial Court accepted when passing the final decree on 24 June 2008.

On appeal, the First Appellate Court set aside the final decree, reasoning that the defendants’ shares had not been declared in the preliminary decree and that the subsequent proceedings were therefore null and void.

The plaintiffs appealed to the High Court.

1. Whether the First Appellate Court erred in law, including by applying incorrect legal principles, when it reversed the Trial Court’s decree

2. Whether the First Appellate Court’s judgment and order were contrary to Section 97 of the Code of Civil Procedure, 1908

Section 97 of the Code of Civil Procedure, 1908 provides that a party aggrieved by a preliminary decree who does not appeal from it is precluded from disputing its correctness in an appeal from the final decree; accordingly, an appeal from the final decree is confined to matters arising in the subsequent proceedings and proceeds on the basis that the preliminary decree is correct and binding.

The Court relied on Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790, for the purpose and effect of Section 97, and referred to Chittoori Subbanna v. Kudappa Subbanna, AIR 1965 SC 1325.

The preliminary decree had not been appealed and therefore could not be reopened in the appeal from the final decree.

The First Appellate Court’s conclusion that the later proceedings were null and void because the preliminary decree omitted the defendants’ shares effectively challenged the unappealed decree, contrary to Section 97.

The High Court also rejected the respondents’ request for remand to define those shares, since doing so would reopen the preliminary decree in a manner barred by that provision.

It set aside the judgment and decree dated 20 March 2012 in Title Appeal No. 72 of 2010 and disposed of the second appeal and any pending applications; the Trial Court record was to be returned.