DURGA PRASAD Vs. BABU SRI NIWAS SUREKHA

JUDGEMENT

(1.) THIS is an appeal from the final decree in a mortgage suit. The judgment- debtor-mortgagor attempted to appeal from the original judgment as a pauper but his appeal failed. The decree which was in the form of a decree for sale was then amended to the form of a decree for foreclosure, whereupon the appellants came again to this Court attempting to appeal against the order amending the original decree. Mr. K. P. Sukul on behalf of the appellants suggests that the order amending the decree should be regarded as made under Order XLVII, Rule 1, and that the appeal should be treated as an appeal from an order, but I cannot see how the appeal can be prosecuted without bringing into question the propriety of the final order in the original judgment that is to say, the appellants, in order to succeed, must show that the proper form of decree in the present case would be a decree for sale. At the time when this last appeal was preferred, it was apparently still open to the mortgagor to redeem his mortgage, and the value of an appeal against the order of foreclosure would have been the amount of mortgage money, but the liability to sale for realization of the mortgage money is admitted, and the only question is of whether the property should be sold or whether the mortgagee should foreclose. It is difficult to place an exact money value on the appeal for the calculation of ad valorem court-fees; and under Art. 17 (6) the memorandum of appeal should bear a court-fee stamp of Rs. 15.