KAUSHALYA DEVI AND OTHERS versus BAIJNATH SAYAL AND OTHERS.

KAUSHALYA DEVI AND OTHERS versus BAIJNATH SAYAL AND OTHERS.

A preliminary decree passed in non-compliance with Order 32 Rule 7(1) is voidable and not void; only the minor can avoid such decree, and if no appeal is preferred against the preliminary decree, Section 97 CPC bars challenging its correctness or validity in appeal against the final decree.

Parties
Appellant: Kaushalya Devi; Respondent: Baijnath Sayal
Jurisdiction
India
Judgment Date
09 February 1961
Procedural Posture
Civil Appeal / Appeal by Special Leave From Judgment and Decree Dated August 28, 1950, of the Punjab High Court in Civil Regular First Appeal No. 343 of 1944
Outcome
Appeal dismissed
Legal Topics
Partition Suit, Minor's Representation, Preliminary and Final Decrees, Appeals, Code of Civil Procedure Order 32 Rule 7, Section 97 of CPC
Civil Procedure Partition Suit Minor's Representation Preliminary and Final Decrees Appeals Code of Civil Procedure Order 32 Rule 7 Section 97 of CPC

Case Brief

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Parties

Kaushalya Devi

Appellant

Baijnath Sayal

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave From Judgment and Decree Dated August 28, 1950, of the Punjab High Court in Civil Regular First Appeal No. 343 of 1944

Legal Issues

  1. 1 Whether a preliminary decree by consent against minor without leave of court is a nullity under Order 32 Rule 7(1) of the Code of Civil Procedure
  2. 2 Whether such a preliminary decree can be challenged in appeal against the final decree in view of Section 97 CPC

Ratio Decidendi

A preliminary decree passed in non-compliance with Order 32 Rule 7(1) is voidable and not void; only the minor can avoid such decree, and if no appeal is preferred against the preliminary decree, Section 97 CPC bars challenging its correctness or validity in appeal against the final decree.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs