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Arun Kumar Singh vs Col.Hari Singh & Ors on 28 August, 2008 cites

Phoolchand And Anr vs Gopal Lal on 10 March, 1967

Learned counsel for the appellant has also relied upon the decision of the Hon'ble Supreme Court in the case of Phoolchand (supra). The said decision was rendered in relation to the then existing provisions of Order XLI Rule 1 of the Code of Civil Procedure and even while holding the said provision to be of a mandatory requirement and that in the absence of copy of the decree, the filing of the appeal would be incomplete and defective and incompetent, the Hon'ble Supreme Court pointed out that there could be circumstances where the appeal may be competent even though a copy of the decree may not have been filed. In the said case, the Hon'ble Supreme Court noticed that after framing of the preliminary decree, the Court proceeded to vary the shares. The order of the Court deciding the dispute about change in shares specified in the preliminary decree was treated to be a decree liable to appeal. As already pointed out, in the present case, nothing has been done by the learned Trial Court so far the rights of the parties in relation to the subject-matter of the suit are concerned.
Supreme Court of India Cites 6 - Cited by 165 - K N Wanchoo - Full Document

Hameed Joharan (D) And Ors vs Abdul Salam (D) By Lrs. And Ors on 13 August, 2001

The principle as enunciated in Hameed Joharan (supra) that the period of 12 years, so far execution of decree is concerned, begins to run from the date on which decree becomes enforceable and not when the decree becomes executable and as reaffirmed by the Hon'ble Supreme Court in the case of Dr. Chiranji Lal (supra) are not required to be dilated upon in the present order for the issue herein being limited to the question of the competence of this first appeal 23 under Section 96 of the Code of Civil Procedure against the order dated 07.07.2008. The said decisions, however, do not make out a case in favour of the appellant that the present appeal, against the order dated 07.07.2008, could be treated as competent.
Supreme Court of India Cites 27 - Cited by 165 - Full Document

Parashuram Rajaram Tiwari vs Hirabai Rajaram Tiwari And Ors. on 11 October, 1956

Learned counsel for the appellant has strongly relied upon the decision of the Hon'ble Bombay High Court in the case of Parashuram Rajaram Tiwari (supra). A bare look at the said decision makes it clear that a preliminary decree had been passed and the plaintiff claimed that by reason of his father's death, his share was augmented from 1/8 to 1/7 and such an application moved by the plaintiff was declined by the Trial Court. The Hon'ble Bombay High Court held that until there was a final decree in the partition suit, the suit remained pending and, thus, the application by the plaintiff was moved in a pending suit. The Court further pointed out that the order of the Trial Court essentially meant refusal to award the plaintiff his augmented share and that was a clear determination of his right which was refused. The said decision, apart from being not applicable because therein the suit was pending after passing of preliminary decree, brings to the fore the distinction essential for the present purpose that when the application is made in the pending suit and until final decree is passed, if there is any such kind of adjudication that is in the nature of determination of a right, such an order could be considered 19 open to challenge in appeal. Herein, as pointed out above, final decree for partition had already been passed on 19.04.1984 and, by the order dated 07.07.2008, no such adjudication has been made so as to be determinative of any of rights of the parties qua the matters in controversy in the suit. In fact, basically there was never any 'matter in controversy' in the present suit.
Bombay High Court Cites 3 - Cited by 13 - Full Document

Dr. Chiranji Lal (D) By Lrs vs Hari Das (D) By Lrs on 13 May, 2005

The principle as enunciated in Hameed Joharan (supra) that the period of 12 years, so far execution of decree is concerned, begins to run from the date on which decree becomes enforceable and not when the decree becomes executable and as reaffirmed by the Hon'ble Supreme Court in the case of Dr. Chiranji Lal (supra) are not required to be dilated upon in the present order for the issue herein being limited to the question of the competence of this first appeal 23 under Section 96 of the Code of Civil Procedure against the order dated 07.07.2008. The said decisions, however, do not make out a case in favour of the appellant that the present appeal, against the order dated 07.07.2008, could be treated as competent.
Supreme Court of India Cites 18 - Cited by 39 - Full Document
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