1. This is an appeal from the decision of the learned Subordinate Judge of Midnapore, dated the 29th of November, reversing the decision of the Munsif. The suit was a partition suit. Two points have been raised in this case, of which the first is whether the appeal was properly preferred to the lower Appellate Court. To decide this the following dates are necessary. The preliminary decree was made on the 9th September, 1910. The present appeal was preferred before the lower Appellate Court on the 4th November, 1910. The final decree was made in the partition suit on the nth March, 1911. Under Section 97 of the CPC not only has the appellant a right to appeal against the preliminary decree, but he is bound to appeal or else he is precluded from questioning it in a subsequent proceeding. The appellant contends that as no appeal was preferred against the final decree, the appeal against the preliminary decree is incompetent. We do not think that it is so. That is quite clear from the decision in the case of Nistarinee Dabee v. Rai Mahun Biswas . 1013 20 I.C 576.. A similar view seems to have been taken in the case of Ugra Narain Singh v. Basan Narain Singh . 1913 19 I.C 630.. There is another decision * * * * * to the contrary, namely, the case of Khirodamoyi Dasi v. Adhar Chandra Ghose . 1913 21 I.C 516.. It seems to us that we ought to follow the decisions in the first two cases cited. It is quite clear that the law gave a right to appeal against the preliminary decree and that right was not taken away because no appeal was preferred against the final decree, which was subject to the decision in the appeal in the preliminary decree. If that appeal succeeds the final decree ought to be amended in accordance with the result of the appeal.
2. The case of Mackenzie v. Narsingh Sahai . 1909 36 Cal. 762 has also been relied upon by the learned Vakil for the appellant. That case, it is admitted, was under the old Code of Civil Procedure. There a party preferred an appeal against a preliminary decree without preferring an appeal against the final decree. S. 97 was expressly enacted to get over the practice which had grown up by virtue of a Full Bench decision of this Court. There is, therefore, nothing in the first contention.
3. The second question raised is whether there was a previous partition. It is purely a question of fact. The learned Judge has held that there was a previous partition and we cannot disturb his finding.
4. The present appeal, therefore, fails and is dismissed with costs.
V.B/R.K
5. Appeal dismissed.