ISHWARI PRASAD SINGH Vs. RAGHUBANS LAL

JUDGEMENT

(1.) This application is directed against an order of the Subordinate Judge of Gaya, refusing to pass a final decree in a mortgage suit on the ground that an appeal against the preliminary decree was pending before this Court. The learned Subordinate Judge, on the basis of some decisions which I shall just refer to, has held that during the pendency of an appeal against a preliminary decree for sale final decree could not be passed. A preliminary objection has bean taken on behalf of the opposite party that the order of the learned Subordinate Judge is a decree and appealable, and therefore application for revision does not lie.

(2.) Reliance is placed by Mr. Khurshaid Husnain who appears on behalf of the opposite party on the decision in Kumar Ganganand Singh V/s. Rai Pirthi Chand (1920) 5 PLJ 342. In that case the objection of the judgment-debtor against the passing of the final decree was disallowed and a final decree was passed. The judgment-debtor preferred a miscellaneous appeal against that order. It was held by this Court that the order was a decree and was appealable as such and not as an order. The Court relied upon the decisions in Akikunnissa Bibee V/s. Roop Lal Das (1898) 25 Cal 133, Hatem Ali V/s. Abdul Gaffur (1904) 8 CWN 102, Madho Ram v. Nihal Singh and Subha Lakshmi Ammal V/s. Ramalinga Chetty AIR 1919 Mad 709. Mr. Abani Bhusan Mukharji on behalf of the petitioners contends that none of these cases is an authority for the proposition that where the Court has not absolutely refused to pass a final decree which amounts to a dismissal of the suit altogether, but has only postponed it on the ground that the passing of the final decree was not proper at that stage, the order amounts to a decree.

(3.) An examination of the cases referred to will show that this contention is well- founded. In the case reported in Akikunnissa Bibee V/s. Roop Lal Das (1898) 25 Cal 133, the passing of the final decree was altogether refused on the ground that the preliminary decree was passed against a dead man, and therefore no decree existed which could be made final. In the case reported in Hatem Ali V/s. Abdul Gaffur (1904) 8 CWN 102, the passing of the final decree was refused on the ground that the decree was satisfied; and in the cases reported in Madho Ram v. Nihal Singh and Subha Lahshmi Ammal V/s. Ramalinga Chetty AIR 1919 Mad 709, the Court held that the passing of the final decree was barred by limitation. In the case before us the learned Subordinate Judge has not absolutely refused to pass a final decree. He has held that the final decree could not be passed as long as an appeal against the preliminary decree was pending. In my opinion, such an order cannot by any stretch of imagination be held to be a decree.