LALJI BHAGAT Vs. BABU RAGHUBANS PRASAD

JUDGEMENT

(1.) This Letters Patent appeal by the defendants of a mortgage suit is directed against the decision of a learned Single Judge of this Court. The plaintiff-respondent instituted a suit for recovery of his dues based on a simple mortgage bond. There was a compromise between the parties by which the defendant-mortgagors were allowed to pay a certain amount by annual instalments, and it was agreed that, on their failure to pay any instalment, the plaintiff would be competent to start proceedings for a final decree and to realise the dues by sale of the mortgaged property. A compromise petition was accordingly, filed on the 27th June, 1945 and a preliminary decree in terms thereof was drawn up by the trial Court on the 7th July, 1945. The defendant-appellants defaulted in payment of the last instalment, and then the plaintiff-respondent made an application before the trial Court to make the decree absolute. This prayer was allowed and a final decree was prepared in respect of the dues in accordance with the terms of the compromise, except that the learned Subordinate Judge did not allow interest from the date of the decree, but allowed interest from the date of default. The plaintiff, therefore, came up to this Court, and the learned Single Judge modified the decree of the trial Court by allowing interest from the date of the decree, as stipulated in the compromise decree. The lenrned Single Judge also rejected the contention of the defendants that the order of the learned Subordinate Judge making the decree absolute was not appealable. Hence, this appeal by the defendants.

(2.) The first point pressed in the present appeal by Mr. Ugra Singh. learned advocate for the appellants, was that no appeal lay against the order of the Subordinate Judge. He argued that no final decree could be passed in this case, as the decree passed on the 27th June, 1945 was not a decree under Order 34, Rule 4, of the Code of Civil Pro-eedure. He further submitted that the proceeding before the Subordinate Judge star'ed on the failure of the defendants to pay Ihe last instalment was in the form of a supplemental proceeding, and not a proceeding under Order 34, Rule 5, of the Code of Civil Procedure.

(3.) In order to consider the arguments advanced, it is necessary to refer to the relevant terms of the compromise, which read as follows: