DHANNALAL SARDARMAL Vs. SETH NOSHIRWANJI GODEREJ

JUDGEMENT

(1.) THIS is an application for stay o further proceedings consequent upon passing of the preliminary decree which is under appeal in this case.

(2.) MR. Pande for the applicant relies upon the decisions in Karam Elahi v. ML Amirunnisa, AIR 1930 Lah 103 (A) and Diwan Chand v. Nanak Chtmd, AIR 1932 Lah 271 (B), in support of the contention that where an appeal is preferred against a preliminary mortgage decree the subsequent proceedings for passing of the final decree should generally be stayed.

(3.) THIS is no doubt held in the aforesaid cases. But these mscs relied upon two earlier decisions of that Court reported in Rup Narain v. Shibbu Mal, 107 Ind Gas 486 (Lah) (C) and Chhotelal v. Sultansingh, 111 Ind Cas 383 (Lah) (D ). The former is a decision by Dalip Singh, J. , who relied upon the Full Bench decision of Allahabad High Court in Gajadhar Singh v. Kishen Jiwan Lal ILR 39 All 641: (AIR 1917 All 163) (E), for the view that there cannot be more than one final decree in a suit for sale upon a mortgage and that essential condition for the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. The second case viz. III Ind Cas 383 (Lah) (D), laid down that proceedings in connection with a final decree in that case ought to be stayed. In the former case Justice Dalip Singh observed that he was not prepared to endorse the reasoning of the Full Bench of the Allahabad High Court but thought it proper in that case to stay further proceedings. This decision therefore cannot be read as supporting the proposition that once a preliminary decree is appealed against it is incompetent to pass a final decree or that the proceedings for final decree should be stayed as a matter of course. In fact the learned Judge rightly pointed out, the presence of a final decree does not make the appeal against preliminary decree unmaintainable. Mr. Pande therefore is not right when he says that in case a final decree is passed his appeal against the preliminary decree may be rendered ineffective unless he preferred appeal against the final decree.