M.Y.EQBAL, J. - (1.) HEARD the learned Counsels appearing for the parties.
(2.) THIS application under Article 226 of the Constitution of India is directed against the order dated 25.9.2007 passed by the District judge, East Singhbhum at Jamshedpur in Title (Partition) Appeal No. 3 of 2007 whereby the appeal preferred by the petitioner -appellant against the final decree passed in Title (Partition) Suit No. 47 of 1984 has been dismissed as not maintainable. The facts of the case lie in a narrow compass: The plaintiff (respondent No. 5) filed Title Suit No. 47 of 1984 against the petitioner -defendant seeking partition of joint family properties. The said suit was decreed and a preliminary decree of partition was passed holding that the plaintiff and the defendants are entitled to share in the properties. The petitioner did not prefer any appeal against the preliminary decree dated 04.5.1993. Thereafter, the plaintiff proceeded for preparation of final decree and a Pleader Commissioner was appointed. The Pleader Commissioner submitted his report and thereafter a final decree was drawn up on 26.8.2006 by Subordinate Judge -V, Jamshedpur in the said Partition Suit No. 47 of 1984. The defendant -petitioner preferred an appeal against the final decree in the Court of District Judge, East Singhbhum, Jamshedpur which was registered as Title Appeal No. 03 of 2007. The plaintiff -respondent challenged the maintainability of the appeal filed by the petitioner. The learned District Judge, after hearing the parties, passed the impugned order dated 25.9.2007 holding that the appeal against the final decree is not maintainable, as because no appeal against the preliminary decree was filed. For better appreciation, the relevant portion of the impugned order is quoted herein below: 11. Next, it is to be seen whether this appeal could have been filed or can be taken to have been filed Under Section 96 of C.P.C. or not against an order confirming the report of the Pleader Commissioner or against the final decree. In the aforesaid context, Section 97 C.P.C. itself is very specific wherein a clear stipulation has been made debarring a person from filing appeal Under Section 96 of C.P.C. after the final decree, if the person has not moved by filing appeal against the preliminary decree. Our own Hon'ble High Court in a judgment reported in 1995 PLJR page 670 has already considered the said question and by making elaborate discussions on all the relevant aspects and also by noticing all the relevant provisions of C.P.C. has observed that if a person is not aggrieved by the judgment/preliminary decree, he cannot agitate the matter relating to confirmation of Pleader Commissioner's report after the final decree, by filing appeal under Section 96 of C.P.C. in view of the provisions of Section 97 of C.P.C. Thereafter, the Hon'ble Court made the consideration as regards forum or the remedy available to a party in such event and then held that the only remedy against such order is revision as envisaged Under Section 115 of C.P.C. 12. It, thus, becomes evident that even if the present appeal would have been filed Under Section 96 of C.P.C., the same would not have been maintainable and as per the aforesaid judicial pronouncement of the Hon'ble Court, it is the revisional forum that can be availed of for challenging the final decree or the order of confirmation of Pleader Commissioner.
(3.) SECTION 2(2) C.P.C. defines the term 'decree' which reads as under: 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. ;