SUBBALAKSHMI AMMAL Vs. RAMANUJAM CHETTY

JUDGEMENT

(1.) The two questions raised for our decision in this case are (1) whether an appeal lay to the lower appellate court and (2) whether M.P. No. 178 of 1912 contains a sufficient acknowledgment under Section 19 of the Limitation Act to give a fresh starting point for 1st respondent s application.

(2.) The 1st plaintiff sued to recover the amount due to him under a simple mortgage bond by sale of the property mortgaged. On 27th October 1910 a preliminary mortgage decree was passed in his favour giving defendants time till 27th April 1911 to pay the amount found due. Money was not so paid and the present application from which the C.M.S.A. before us arises was filed by the 1st respondent on 16th September 1914 under Order 34 It. 5, Clause 2 for a final decree for sale. The first court dismissed the application as barred by limitation under Article 181 of the Limitation Act. On appeal the lower appellate court reversed that order and has passed a final decree. The 1st defendant has appealed to us against that decision.

(3.) On the 1st question raised, the appellant is right in his contention that the order cannot be treated as one under Section 47, Civil Procedure Code in execution of the preliminary decree. It is an order in the suit itself. The effect of the order is to dismiss the plaintiffs suit so far as it prayed for the realisation of the mortgage money by sale of the mortgaged property. It is a final adjudication on that part of the plaintiffs case so far as the Munsif s court is concerned and therefore falls within the definition of "decree" under Section 2 C.P. Code. A formal decree was drawn up by the Munsif dismissing the petition but it did not expressly dismiss the suit for sale. This, however, seems immaterial as the effect of the order was to so dismiss. In Suppy Nayakan v. Perumal Chetti . this Court held that an order declaring that a suit had abated because the legal representative of the deceased defendant had not been brought on record in time was a decree and appealable as such, though no formal decree dismissing the suit had been drawn up. The principle of that decision applies to the present case. If the plaintiffs application had been allowed by the Munsif and a final decree passed, there can be no doubt that an appeal would have lain against it. It would be an anomalous position if we were to hold that an appeal dues not lie where the application is refused. The ruling of the Full Bench of the Allahabad High Court in Madho Ram v. Nihal Singh (1916) I.L.R. 38 A. 21 shows that appeals are allowed in that province from such orders, as appeals from decrees in suits. We think that is the right view and that the appeal to the lower appellate court was a competent one under Section 96 of the Civil Procedure Code.