Case Note & Summary
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 was filed by the judgment debtors (appellants) against the judgment and decree dated 26.08.2013 passed by the Senior Civil Judge, Challakere in R.A.No.7/2013, which dismissed the appeal and confirmed the judgment and decree dated 05.12.2012 passed in FDP No.1/2009 by the Principal Civil Judge, Challakere. The FDP was filed under Order 21 Rule 18 read with Section 54 of CPC for passing a final decree in a partition suit. The appellants, who were defendants in the suit, had not challenged the preliminary decree passed earlier. In the final decree proceedings, they raised objections regarding the shares allotted in the preliminary decree. The trial court overruled the objections and passed the final decree. The first appellate court dismissed the appeal. In the second appeal, the High Court observed that the preliminary decree had become final as it was not challenged by the appellants. The court held that in final decree proceedings, the court cannot go behind the preliminary decree and re-determine the shares. The objections raised by the appellants were not maintainable. The High Court found no substantial question of law involved and dismissed the appeal with no order as to costs.
Headnote
A) Civil Procedure - Final Decree Proceedings - Preliminary Decree - Order 21 Rule 18 read with Section 54 of Code of Civil Procedure, 1908 - The appellants, judgment debtors, filed objections in final decree proceedings challenging the preliminary decree passed in a partition suit. The trial court and first appellate court rejected the objections. The High Court held that the preliminary decree had become final as it was not challenged by way of appeal. Therefore, no objection regarding the preliminary decree can be raised in final decree proceedings. The appeal was dismissed as no substantial question of law arose. (Paras 1-10)
Issue of Consideration
Whether the judgment debtor can challenge the preliminary decree in final decree proceedings under Order 21 Rule 18 read with Section 54 of CPC.
Final Decision
The High Court dismissed the appeal with no order as to costs, holding that no substantial question of law arose.
Law Points
- Final decree proceedings cannot be used to challenge preliminary decree
- Objections to preliminary decree must be raised in appeal against preliminary decree
- No substantial question of law under Section 100 CPC if preliminary decree unchallenged
