CHADALAVADA SATYANARAYANA Vs. ALLADI SURYANARAYANA

JUDGEMENT

(1.) The appellant mortgaged certain property to the respondent's lather. The mortgage was in simple form but at some time, whether at the date of the mortgage or subsequently is immaterial, the respondent's father went into possession of the mortgaged property. Thus the mortgagee was a mortgagee in possession. The appellant filed a suit for redemption in the Court of the District Munsiff of Kavali and obtained a preliminary decree on the 6 of October, 1942. The respondent's father died during the pendency of these proceedings and the respondent was joined as his legal representative. The preliminary mortgage decree for redemption followed the form prescribed in Order 34, Rule 7, Civil Procedure Code. The District Munsiff in granting a preliminary decree arrived at a decision as to the amount payable by the mortgagor after making due allowance for the profits of the mortgaged property received by the respondent's father or the respondent up to the date of the preliminary decree. On the 14 of July, 1944, the appellant filed an application for an account to be taken of the profits received by the respondent after the date of the preliminary decree and before the passing of the final decree. In the meantime the appellant had paid into Court the amount fixed by the preliminary decree and the respondent had delivered up possession to the appellant. The dates on which payment was made and possession was given are immaterial. It is sufficient to note that both these acts had been done at the time when the appellant applied for a final decree. The appellant appears to have described his application as one falling under Rule 7 of Order 34, and it. has been so referred to in both the Courts below.

(2.) This was clearly a mistake as the application must necessarily have been one under Rule 8 of Order 34. The District Munsiff held that as the preliminary decree gave no direction for the taking of an account in respect of the profits after the date of that decree such an application would not lie. He held that the appellant would " have to seek his remedy elsewhere " and dismissed the application. The appellant appealed to the District Court of Nellore. The respondent resisted that appeal on two grounds both of which were upheld by the District Judge. The respondent's first objection was that no appeal lay. His second was the ground found in his favour by the District Munsiff. The District Judge held that the order dismissing the appellant's application was not an order appealable under the provisions of Order 43, Rule 1, and accordingly that no appeal lay. The learned Judge was clearly in error on this point, and counsel for the respondent before me conceded at an early stage that this decision could not be supported. As I have observed, the appellant's application was for a final decree. He has been refused that relief. It is beyond question that an appeal would lie from a final decree, and it cannot be contended that a similar right will not lie when the relief is refused.

(3.) On the respondent's second point of objection the District Judge agreed with the decision of the District Munsiff that in the absence of any provision in the preliminary decree for the taking of an account no such account could be ordered.