Section 97 — Appeal from final decree where no appeal from preliminary decree
Some suits are decided in two steps — a preliminary decree, then a final decree. Section 97 is a use-it-or-lose-it rule: if you are aggrieved by the preliminary decree and do not appeal it, you cannot later question its correctness in the appeal from the final decree.
How to read Section 97
Two decrees, two windows
A suit may yield a preliminary decree first (settling rights) and a final decree later (working them out). Each is separately appealable under § 96.
Use it or lose it
If you are aggrieved by the preliminary decree and do not appeal it when passed, you lose the chance to challenge it.
Locked at the final stage
In the appeal from the final decree, you cannot reopen the correctness of an unappealed preliminary decree.
The bare Act
Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.→ Both are first appeals under § 96 (Order XLI); “preliminary” & “final” decree are defined in § 2(2).
Section 97 stands as in the original 1908 Code — unamended. (“Passed after the commencement of this Code” simply fixes it to decrees under the present Code.)
Key terms decoded
A decree that decides the rights of the parties but leaves something further to be done before the suit is fully disposed of (e.g. in partition or accounts suits). — § 2(2).
The decree that completely disposes of the suit, working out what the preliminary decree settled.
A party who is adversely affected by it — the person who could have appealed it.
The trigger for the bar: the aggrieved party lets the preliminary decree go unappealed (the right to appeal it accrues when it is passed).
He is barred from arguing the preliminary decree was wrong — it stands as conclusive between the parties.
The bar bites at the later stage: even though the final decree is itself appealable, that appeal cannot be used to re-attack the preliminary decree.
The picture — appeal it now, or it locks
A preliminary decree carries its own right of appeal, exercisable then. Let that window pass, and § 97 locks the decree’s correctness — the later appeal from the final decree cannot prise it open again.
Section 97, part by part
Connected provisions
Section 97 works with the first-appeal right of § 96: a preliminary decree is itself appealable, and must be appealed then. “Preliminary” and “final” decree are defined in § 2(2); preliminary decrees are made under Order XX (and Orders such as XXVI / XXXIV). It sits in Part VII’s appeals-from-original-decrees group.