JUJISTI MAHAPATRO Vs. KORADA MAGATA PATRO

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother is going to deliver and I agree with him. As the question involved in the appeal is of some importance, I will briefly record my reasons in support of my conclusion.

(2.) This appeal arises out of an application filed by the transferee decree-holder for passing a final decree in a mortgage suit. The facts of this case are not disputed. In O.S. No. 7 of 1918 on the file of the District Court of Ganjam, which was a suit on a mortgage, a preliminary decree for sale was passed on 12 December, 1921, fixing six months, for the payment of the decree amount. An appeal against the decree was filed in the High Court--Appeal No. 259 of 1923--by the 5 judgment-debtor. Notice was ordered in the appeal, and some of the respondents were served. At this stage "the appeal itself was withdrawn by the appellant and it was dismissed with the costs of those respondents that appeared. The order passed by the High Court runs thus: The appeal is withdrawn. It is dismissed with costs. The costs will be proportionate ...

(3.) This order was passed on 21 January, 1924. On 21 January, 1927, the transferee decree-holder presented I.A. No. 36 of 1927 in the District Court for a final decree. The question that arises for decision is whether this petition is in time.