# Mohammad Shakil & Anr v. Girish Chandra & Ors - **Citation:** (2019) 2 ILRA 789 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-09-12 - **Case number:** Second Appeal No. 183 of 1998 - **Bench:** Harsh Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-shakil-anr-v-girish-chandra-ors-44748 - **Pages:** 2 ## Headnote A. Banking Law Regulation Act, 1949 - Section 45ZA of - Indian Contract Act, 1872 - Section 45 - Rights of 'Survivor' in view of mandate of 'Former or Survivor' mentioned over the Fixed Deposit Receipts (FDRs), as mode of payment - held - survivor gets limited rights to ## Text 2 All. Mohammad Shakil & Anr. Vs Girish Chandra & Ors. 789 (2019)10ILR A 789 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.09.2019 BEFORE THE HON'BLE HARSH KUMAR, J. Second Appeal No. 183 of 1998 Mohammad Shakil & Anr. ...Appellants Versus Girish Chandra & Ors. ...Respondents Counsel for the Appellants: Sri G.R. Jain, Sri Mukesh Kumar, Sri Shyam Srivastava Counsel for the Respondents: Sri S.K. Misra A. Code of Civil Procedure, 1908 - Section 96 and Section 104 read with Order XLIII - Partition Suit - Appeal lies only against final decree and not against partition scheme - Appeal not maintainable against order merely disposing of Amin report Held:-In a partition suit, unless a partition scheme is finalized and final decree is prepared, no appeal lies as appeal lies only against final decree and not against partition scheme - Order of disposal of Amin report and Commissioner report is not an order which may be termed as decree and no appeal against such order is legally maintainable under Section 96 or 104 or order XLIII of Code of Civil Procedure. (Para 4) Appeal dismissed (E-5) List of cases cited: - 1. Phanindra Nath Banerji Vs Labanya Mayee Banerji 1950 Ald. Weekly Reporter 28 (Delivered by Hon'ble Harsh Kumar, J.) Civil Misc. (Delay Condonation) Application No.7 of 2019, Civil Misc. Application No.8 of 2019 & Civil Misc. (Substitution) Application No.9 of 2019 1. Heard Shri Dinesh Rai, Advocate, holding brief of Shri Mukesh Kumar, learned counsel for appellant and Shri S.K. Misra, learned counsel for respondent. 2. In reply to abatement application no.172533 of 2015 filed by respondent on 14.5.2015, applications have been moved by appellant for condonation of delay, setting aside abatement and substitution of legal representatives of deceasedrespondent nos.2 & 5 to which counter affidavit has been filed on 30.7.2019. 3. At the very outset, it was pointed out that present second appeal has been filed against impugned judgment and decree dated 23.1.1998 in First Appeal No.695 of 1987, passed by IVth Additional District Judge, Farrukhabad against the order dated 25.8.1987 passed by IInd Additional Civil Judge, Farrukhabad in proceedings of execution i.e. for preparation of partition scheme in a partition suit, disposing of the report and map of Amin as well as report of commissioner and objections thereto arising out of Civil Suit No.152 of 1982. By above order dated 25.8.1987, the learned trial Court has disposed of the objections and amended/modified the report Amin against which, First Appeal No.695 of 1987 was preferred by defendants/judgment debtors which has been dismissed by impugned order. Hence the defendants have preferred this second appeal, which has been admitted without framing any substantial question of law, which is mandatory under provisions of Section 100 (5) C.P.C. 4. Undisputedly, the order dated 25.8.1987 passed by trial Court is in order 790 INDIAN LAW REPORTS ALLAHABAD SERIES of disposal of report Amin and Commissioner which is not an order which may be termed as decree and no appeal against such order is legally maintainable under Section 96 or 104 or order XLIII of Code of Civil Procedure. In a partition suit, unless a partition scheme is finalized and final decree is prepared, no appeal lies as appeal lies only against final decree and not against partition scheme. This legal position could not be disputed either by learned counsel for appellant. 5. My above view is supported by the judgment passed by this Court in the case of "Phanindra Nath Banerji Versus Labanya Mayee Banerji 1950 Allahabad Weekly Reporter 280" wherein it was held that- "mere order giving directions for preparation of final decree is not appealable. A decree for partition, to be operative, must be engrossed on stamped paper required by Stamp Act, and until the judge signs the decree so engrossed it cannot be said that the suit has terminated". 6. In view of above facts and legal position, the final appeal no.695 of 1987, though decided on merits, was legally not maintainable and against the impugned order dated 23.1.1998 passed in above mentioned final appeal (which is not a decree), no second appeal is legally maintainable. Accordingly, the second appeal is also not maintainable irrespective of the fact that it has been admitted on 20.2.1998 without framing any substantial questions of law in contravention of provision of Section 100 (5) of Code of Civil Procedure. 7. In the circumstances, the appeal itself is not maintainable and is liable to be dismissed. 8. The appeal is dismissed accordingly with no order as to costs. 9. Substitution applications are disposed off accordingly without prejudice to the rights of parties who may seek remedy as available to them. 10. Interim order, if any, stands vacated. 11. Let the lower Court record, if any, has been received be sent back forthwith to court below alongwith a copy of this order. ---------- (2019)10ILR A 790 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.08.2019 BEFORE THE HON'BLE HARSH KUMAR, J. Second Appeal No. 121 of 2002 Shri Ram Krishna Puri ...Appellant Versus Smt. Gurpyari Devi & Ors. ...Respondents Counsel for the Appellant: Sri Some Narayan Mishra, Sri S.N. Mishra Counsel for the Respondents: Smt. Usha Kiran, Sri Abhijeet Mukherji, Mamta Singh, Sri N.K. Srivastava, Pratima Srivastava, Sri B.K. Shukla, Sri S.K. Mehrotra A. Banking Law Regulation Act, 1949 - Section 45ZA of - Indian Contract Act, 1872 - Section 45 - Rights of 'Survivor' in view of mandate of 'Former or Survivor' mentioned over the Fixed Deposit Receipts (FDRs), as mode of payment - held - survivor gets limited rights to