SAT PARKASH Vs. BAHAL RAI

JUDGEMENT

(1.) The question that has been referred to this Bench for decision is as follows: In a mortgage suit, where a preliminary decree has been passed by the trial Court and an appeal has been preferred, can a final decree be prepared by the trial Court at the end of the period allowed for payment of the mortgage debt or not.

(2.) An application under Order 41, Rule 5, Civil P.C., was presented by Mr. Panna Lal in First Appeal No. 101 of 1930, praying that the preparation of the final decree in a suit, Satparkash and Anr. V/s. Bahal Rai and Anr. be stayed till the decision of the appeal. The application was opposed, and during the hearing of the application it was submitted by Mr. Panna Lal that by reason of an appeal against the original preliminary decree having been preferred the Court that passed the preliminary decree ceased to have jurisdiction to pass the final decree. It is upon that objection being raised that the present reference was made to this Bench.

(3.) Mr. Panna Lal appearing for the petitioner has urged before us that under the provisions of the Civil Procedure Code no preliminary decree for sale on foot of a mortgage can be made final when an appeal has been preferred against that preliminary decree. In making this submission he has referred us to the definition of a decree in Section 2, Civil P.C. Section 2 defines a "decree" as follows: "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.