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Section 97: Appeal from final decree where no appeal from preliminary decree

Code of Civil Procedure • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1908
Section 96 All 158 Sections of Code of Civil Procedure Section 98

Legal Commentary & Landmark Judgments: Section 97

Section 97 establishes a strict statutory preclusion barring a party aggrieved by a preliminary decree from disputing its correctness in any appeal against the final decree if they failed to appeal against the preliminary decree within limitation.

  • Failure to Appeal Against Preliminary Decree: Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree.
  • Preclusion in Final Decree Appeal: He shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
  • Finality of Preliminary Findings: Findings regarding shares in partition suits, liability to render accounts, or mortgage redemption amounts become res judicata upon expiry of limitation for the preliminary decree.
  • Protection of Final Decree Proceedings: Prevents a defaulting litigant from reopening settled issues of liability at the stage of final decree execution.
Key Landmark Precedents:
  • Phoolchand v. Gopal Lal, AIR 1967 SC 1470: The Supreme Court held that Section 97 creates an absolute bar: a party who lets the preliminary decree become final cannot challenge the shares or rights determined therein in an appeal against the final decree.
  • Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689: The Supreme Court authoritatively analyzed Section 97, confirming that the preliminary decree conclusively settles the substantive rights, leaving only the ministerial division for the final decree.
  • Mool Chand v. Deputy Director of Consolidation, (1995) 5 SCC 631: Reaffirmed that Section 97 incorporates the principle of finality of judicial determinations at intermediate decree stages.
Courtroom Practice & Strategic Litigation Guidance:

Never wait for the final decree to challenge your determined share in a partition suit; you must file a First Appeal under Section 96 against the Preliminary Decree immediately, or Section 97 will forever extinguish your right of challenge.

Section 96 All 158 Sections of Code of Civil Procedure Section 98