CHANDULAL MAGANLAL Vs. MOTILAL HARILAL

JUDGEMENT

(1.) In this case the plaintiff sued to recover Rs. 6721 and costs and interest on the footing of a registered mortgage-deed dated January 23, 1923, for Rs. 6500. The defendant admitting the mortgage pleaded that he had not received a certain sum of Rs, 2600 as a part of the consideration. The First Glass Subordinate Judge held that this plea was bad, and directed that after taking an account of what was due on the mortgage the defendant should pay Rs. 6721 and costs of the suit with interest at nine per cent from the date of suit till repayment within six months from the date of the decree. In default plaintiff to recover this sum by the sale of the mortgaged property. That decree was passed on April 10, 1924.

(2.) An appeal was filed to this Court from that decree and was heard on August 21, 1925, In the meantime, the defendant not having paid the decretal amount, the plaintiff applied for a decree absolute, and accordingly a decree was passed for the sale of the mortgaged property. In the appeal against the preliminary decree which came before this Court, we were not told that the decree had already been made absolute, and that an order had been made for the sale of the property. Consequently in dismissing the appeal we directed that the time for payment should be extended by six months from the date of our judgment.

(3.) The respondent's pleader now asks us to delete that order. The actual legal position, when an appeal is filed against a preliminary decree, but no stay of proceedings is asked for, and a final decree is passed in the lower Court without any appeal being filed therefrom, is somewhat obscure. It seems to me that the proper course for the appellant in such a case is to put an appeal on the file against the decree absolute, or in any event to inform the Court, when the appeal against the preliminary decree comes on for hearing, that a decree absolute has been made. It may not be that the Appeal Court is debarred from hearing the appeal from the preliminary decree merely on account of the Court below having passed a final decree, But to avoid the difficulties which may arise when no application has been made for stay of proceedings, it would certainly be desirable that, in any case where a preliminary decree is passed, and a party appeals against that decree, when the Court below passes a final decree, he should file an appeal against that decree.