Mookerjee, J.:— This is an appeal by the plaintiffs against the preliminary decree in a suit for partition.
2. A preliminary objection has been taken to the competence of the appeal on the ground that when it was lodged in this Court, the final decree in the suit had already been made by the Subordinate-Judge and yet no appeal against that final decree was then or has at any time since then been filed.
3. The facts material for the determination of this question may be briefly stated.
4. The preliminary decree was made on the 5th April, 1922. The Court, thereupon directed that the 18th April, 1922 be fixed for the appointment of a commissioner and the plaintiffs were called upon to deposit the requisite fees and copies by that date. The plaintiffs failed to comply with this order and the case was adjourned from time to time. On the 1st May, 1922, the following order was recorded: “The plaintiffs have not deposited the costs for the execution of the commission as directed by the Court, so no partition could be effected. Hence the suit is dismissed.” On the 11th May, 1922, the plaintiffs lodged the present appeal in this Court against the preliminary decree which had been drawn up sighed and sealed on the 28th April, 1922 and as may be anticipated, the memorandum of appeal makes no reference to the final decree. In these circumstances, she respondents have urged that the appeal is incompetent. The contention in substance is that after the suit had been finally dismissed on the lab May, 1922, the plaintiffs were not competent be prefer an appeal against the preliminary decree alone and that it was incumbent on them to prefer an appeal as well against the final decree as against the preliminary decree. This contention is supported by the decisions to Baikunta Nath Dey v. Nawab Salimulla Bahadur(1); Mackenzie v. Narsingh Sahai(2); Knirodamoyi Dasi v. Adhar Chandra Ghose(3); Sadhu Charan Dutta v. Karanath Dutta(4) and Kuloda v. Ramanando(5). The principle which underlies these cases is that the right of appeal from interlocutory orders ceases after the disposal of the suit. This rule is equally applicable to cases of suits is which there is first a preliminary decree and ultimately a final decree.
5. We may add that this view is not conflict with that adopted in Ugra Narain v. Basanta(6); Nistarini v. Rai Mohan(7); Abdul Jalil v. Amar Chand(8); Atul v. Kunja Behari(9); Atul v. Kunja Behary(10); Peary Mohan v. Chandra Sekhar(11) and Bhagwan v. Ishan(12). In these cases, the appeal against the preliminary decree had been lodged before the final decree was made and it was ruled that the final decree must be deemed a contingent decree or in the words of Turner, L.J in Shamapurshad v. Hurropurshad(13), a subordinate and dependent decree, liable to be superseded by the modification or reversal of the preliminary decree, which was the subject matter of an appeal before a superior tribunal when the final decree was made on the basis thereof in the primary Court. In this connection, reference may be made to the decision in Ashutosh v. Upendra(14); Kuppusamy v. Regmah(15); Zemindari of Pangidigudem v. Rani Venkatappaya, (16), where the doctrine of dependent judgments is explained and applied. There is consequently, no ??? in principle between the two series of cases as explained in Mea Hussain v. Samir(17); but this does not appear to have been fully appreciated in some of the cases in the books, such as, Kuriya Mal…(Plaintiff); v. Bishambhar Das…(Defendant).*(18); Muhammad Akhtar v. Tasadduq(19); Kanahaiya v. Tirbeni(20); Lukshmi v. Maru(21); and Ramuvien v. Veerappudayan(22). The decision in Bhagwan v. Ishan which belongs to the second category of cases does, however, call for one observation. In that case, the appeal against the preliminary decree was deemed competent, though preferred after the final decision had been pronounced, on the ground that no formal document described as a decree had been drawn up and signed at that time. This view cannot be defended on principle, and is opposed to that adopted by Brett, J. in Khirodabmoyi Dasi v. Adhar Chandra Ghose, where it is pointed out that the final decree, when formally drawn up, must bear the date of the final judgment. Consequently, the principle enunciated in the first class of cases should be held applicable, even though the decree may not have been formally drawn up. This leaves no room for doubt that the preliminary objection is well-founded in the present case.
6. The question next arises, whether, the appeal should be dismissed on this ground. We have come to the conclusion that in the circumstances of this case we should adopt the course sanctioned by Subramania v. Palachakrapain(23) and Kuloda v. Ramanand, namely, allow the memorandum of appeal to be amended so as to enlarge its scope and convert it into a combined appeal against both the preliminary and the final decrees: Dattatraya v. Ajmvddin(24); Balwant Singh v. Sakharam(25); Damodar v. Haribandh(26). The decision of the Judicial Committee in Pramathanath Roy v. Lee(27) which shows that a litigant cannot Utilise his own laches to obtain an extension of time, plainly does not bar the exercise of our discretion in this case under section 5 of the Indian Limitation Act. On the other hand, reference may be made to Ranjit v. Ramudar(28), and Kumudini v. Kamala(29), where an appeal of one class was allowed to be converted into an appeal of another class, and time was expended for the purpose. On the verbal application of the appellants we consequently direct that the memorandum of appeal be amended so as be make the appeal an appeal not merely from the preliminary decree but also from the final decree dated the 1st May, 1922. The appellants undertake be annex to the memorandum of appeal a certified copy of the order, dated the 1st May, 1922, as no formal final decree was drawn up by the lower Court. He further undertakes to apply in this Court be morrow for the requisite copy, as the records are hare, and the copy will be furnished be him as early as practicable. The copy will then be annexed be the memorandum of appeal as amended. When this has been carried out, the appeal will be not down for disposal on the merits as a combind appeal against the preliminary decree and the final decree. The respondents are allowed their costs of this hearing, which we assess at three gold mohurs; and they will be entitled be retain these costs (which will be entered in the decree of the Court) irrespective of the ultimate result of the appeal.
7. The appeal will be set-down for further orders on the 14th January, 1924; and if on that data it transpires that our order has not been carried out by reason of laches of the appellants, the appeal will stand dismissed with costs. Meanwhile the appellants will be at liberty be amend the memorandum of appeal.