DHUP PANDAY Vs. NARBADESHWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) This is an appeal from an order of remand. The suit was for redemption of a zerpeshgi mortgage. The plaintiff's case was that the mortgagee had been more than repaid the entire mortgage debt by reason of the fact that notwithstanding the stipulation in the mortgage bond requiring the mortgagee to pay, the plaintiff himself had to pay the Government revenue and cesses on the mortgaged property on account of the failure of the mortgagee to do so. It appears that the shares mortgaged formed parts of two separate accounts both numbered 4 in Tauzi Nos. 73 and 249, and the plaintiff produced certain challans showing payment of the Government revenue and cesses for these separate accounts. The defendant on his part produced certain challans showing payment by him, but some of the challans mentioned, three, as the number of the separate accounts.

(2.) The mortgage bond itself did not give the number of the separate accounts. The trial Court accepted the challans produced by the defendant as proof of the fact that he had all along paid the Government revenue and cesses as stipulated in the mortgage bond and accordingly passed a preliminary decree declaring that the mortgage money, Rs. 787-8-0 was due from the plaintiff to the defendant and that if the plaintiff paid it into Court within two months the defendant shall deliver up all documents in his possession, etc. On appeal the Additional Subordinate Judge held that there was no reason why the payment on account of the separate accounts No. 3 should be credited in favour of the mortgagee; and he considered that the mortgagee should be allowed an opportunity of filing copies of some challans relating to separate accounts No. 4 before the final account was made, as it was represented that the defendant had lost some of the challans.

(3.) He therefore set aside the preliminary decree passed by the trial Court and remanded the case to the Munsif: for giving an opportunity to the respondent for filing copies of the alleged lost challans, if any, and then to make an account on the principle pointed out above and pass a decree accordingly. The mortgagee defendant appeals. It has been urged on behalf of the plaintiff-respondent that the appeal is incompetent. There is no dispute that the order of remand passed by the lower appellate Court does not come within Order 41, Rule 23 which does not apply to cases where the trial Court has disposed of the whole suit. There is also no dispute that the only order of remand from which an appeal is provided by the Code is an order passed under Order 41, Rule 23: see Order 43, Rule 1(u). It has however been urged an behalf of the appellant that the order of the lower Court amounts to a decree, inasmuch as it sets aside the preliminary decree passed by the trial Court.