ADITYA KUMAR BHATTACHRJEE Vs. ABINASH CHANDRA MUKHOPADHYA

JUDGEMENT

(1.) This is an appeal by defendant 1 in a suit for a permanent injunction restraining the defendants from filling up an ejmali tank in which the plaintiff has 6 annas, 4gds. share and defendant 1 has 9 annas 10 gds. share. The defence was that there was a partition of the tank (which the defendant called a ditch) and the defendant was in possession of his shares of it. The trial Court finding that there was partition between the parties dismissed the suit.

(2.) On appeal the learned District Judge disagreed with the trial Court on the finding of fact and held that the plaintiff was entitled to have a decree as prayed for and gave certain directions for the carrying out of the decree including the direction that the defendant should either remove the earth put by him in the tank or pay Rs. 100 to the plaintiff towards the cost of cleaning the tank and removal of the earth if the plaintiff should find it necessary to do so.

(3.) This judgment was passed on 23 April 1928. The decree in pursuance of this judgment was drawn up on 28 April 1928. On 1 May 1928 defendant 1 (the appellant before us) filed an application for review of judgment under Order 47, Rule 1, Civil P.C. On 10 May 1928 this appeal was presented in this Court. The review application, as we shall see later, was granted with reference to a very small portion of the decree. The review was granted and final order was passed on 20 June 1928 and the decree in pursuance of the final order was drawn up on-15 July 1928. On these facts a preliminary objection has been taken on behalf of the respondent that no appeal lies from the decree of 28 April and that there being no appeal from the final decree of 17 July the present appeal ought to fail. It is necessary to consider the preliminary objection first, because, if it succeeds, it will not be necessary to go into the merits of the case.