BALAJI Vs. BALLABH DAS

JUDGEMENT

(1.) THE appellants, who were defendants 1 to 5 in the lower Court, have filed the present appeal against the order of the District Judge, Chhindwara, dated 2nd July 1925, granting decree final of foreclosure in favour of defendant 10, Ballabhdas, who is respondent in this appeal. Preliminary decree had been granted on 29th July 1924, the said Ballabhdas being given a final right to redeem. The grounds of appeal are that as respondent had made no application under Order 34, Rule 3(2), Civil P.C., the lower Court had no jurisdiction to make the decree final and that no notice to appellants had issued before decree final was passed. The third ground, viz., that the lower Court should have awaited the decision of this Court in Balaji v. Ballabhdas A.I.R. 1928 Nag. 145, before granting decree above, can be easily disposed of. On the said revision, the lower Court's order of substitution of defendant 10 was questioned, but that order necessarily merges in the order for final decree and can only now be questioned in the appeal therefrom.

(2.) THE respondent has raised a preliminary objection to the effect that ad valorem Court-fee should be paid on the petition of appeal, and the decisions in Bajrangi Lal v. Mahabir Kunwar [1913] 35 All. 476 and Jankibai v. Chimna [1920] 22 Bom. L.R. 811, have been relied on in this connexion. On behalf of the appellants it has been sought to distinguish these cases on the ground that they relate to final decrees for sale under Order 34, Rules 4 and 5, Civil P.C., while here we are concerned with Rule 3 idem. I am unable to see that any difference of principle arises in the matter. The final decree under Rule 3 equally stops the litigation and anyone desiring to appeal against the connected order must clearly pay Court-fees as in any other appeal from a final decree.