TALEB ALI Vs. ABDUL AZIZ

JUDGEMENT

(1.) The plaintiff brought a suit in the Court of the Munsif on the allegation that the defendant was in possession of certain land under a mortgage by conditional sale made to him by the plaintiff and claimed to redeem the mortgage and to recover possession of the land. The defendant contended that the mortgage was not genuine, and that the land was his own. A preliminary decree for redemption was made on 8 December 1924 and on 19 December a final decree for redemption was made, the defendant not appearing. The defendant, on 6th January, preferred an appeal to the lower appellate Court against the preliminary decree. When this appeal came on for hearing no objection was raised that the appeal was incompetent, and on 14 December 1925, the appeal was allowed and the plaintiff's suit was dismissed altogether. Two years afterwards the plaintiffs applied to the Court of the Munsif for execution of the final decree. The defendant objected to the execution on the ground that the preliminary decree upon the basis of which the final decree had been passed, having been set aside, the final decree was not a subsisting decree of which execution could be had. The Munsif, and, on appeal from him, the District Judge, have upheld this objection. On second appeal to the High Court by the plaintiff a Division Bench has expressed the opinion that the judgments of the lower Courts are correct, but, in view of certain previous decisions of this Court, has referred the case to a Full Bench for final decision and has formulated the following questions: (1) Whether an appeal from a preliminary decree is incompetent if a final decree is made before the appeal is presented ? (2) Whether it is necessary for a party aggrieved by a preliminary decree to appeal both from that decree and the final decree in order to maintain his appeal against the preliminary decree, although the final decree apart from its being based on the preliminary decree may be otherwise correct ?

(2.) In the present case no question arises of the defendant having by his conduct subsequent to the passing of the preliminary decree precluded himself from exercising any right of appeal therefrom conferred upon him by the general law. It is not necessary, therefore, to discuss such cases as Baikuntha Dey V/s. Salimulla Bahadur [1907] 12 C.W.N. 590 or, Sheik Salim v. Hajira or to enquire what kind of conduct will debar a litigant from exercising a right of appeal given to him by Statute. The mere fact of a final decree is not evidence of such conduct or even of laches. Again, whether or not the defendant, after the passing of the preliminary decree, ought to have preferred an appeal from the final decree as well, it is by no means manifest that the lower appellate Court was without jurisdiction to hear the appeal from the preliminary decree. As it did, in fact, dismiss the plaintiff's suit, it may well be contended that this decision must govern the parties rights even if it be supposed that the appeal ought not to have been decreed. Indeed the decision in Abdul Jalil V/s. Ameerchand [1913] 18 C.L.J. 223 is an authority to this effect.

(3.) I propose, however, to examine the two questions referred to us. In practice they have been found to give rise to much difficulty both in this Court and in the lower Courts.