Basawant Mallappa Neje v. Kallappa Virbhadrappa Kotiwale .

Rangnekar, J.:— In this appeal a preliminary objection is raised by Mr. Jahagirdar. In order to appreciate it, some facts will have to be stated. In 1923 defendant 1 executed a mortgage for Rs. 3500 in favour of the plaintiff. Six years after that the mortgagor sold his equity of redemption to defendant 2 and defendant 2 agreed to pay off the plaintiff's mortgage and in addition paid a premium of Rs. 600 to the mortgagor. In 1933, four years after this sale, the mortgagee brought a suit on his mortgage which has given rise to this appeal.

2. Defendant 2, the purchaser of the equity of redemption, pleaded that he was an agriculturist and in the alternative he pleaded that the agreement between the parties was that the principal should be Rs. 3000 and not Rs. 3500 and he prayed for instalments. The learned Assistant Judge found that he was an agriculturist.

3. It is complained before us that in spite of the finding, the learned Judge ignored the provisions of the Dekkhan Agriculturists' Relief Act and passed a preliminary decree against the appellant and of course against the mortgagor under the Code of Civil Procedure. The appeal before us is from that decree. Pending this appeal, the lower Court made a final decree on 10th September 1934. The appellant did not ask for a stay of the proceedings after he instituted his appeal, nor has he filed an appeal against the final decree. Mr. Jahagirdar contends therefore that there being neither a stay of the proceedings nor an appeal from the final decree, the final decree stands and this appeal is not competent. The question then is, what is the legal position in a case like this? The question has not specifically come up for decision in this Court, but it has been considered by a Full Bench of the Calcutta High Court, and that Court has held that an appeal from a preliminary decree is not incompetent if the final decree is passed before it is presented, and that in such a case it is not necessary for the party aggrieved by the preliminary decree to appeal against the final decree, if the final decree apart from being based on the preliminary decree, is otherwise correct: 57 Cal 1013.1 In that case Rankin C.J, observed that the function of the final decree is merely to restate and apply with precision what the preliminary decree has ordained; that the decree being in the same suit, the Court in appeal from the preliminary decree as it has-power to reverse or vary the preliminary decree, has also power to affect the final decree: that as the right of appeal from the preliminary decree is given without any qualification, the passing of the final decree is no bar to the institution or hearing of any appeal against the preliminary decree. He further observed that if the preliminary decree is set aside, the final decree is superseded whether the appeal was brought before or after the passing of the final decree; and that the Court when setting, aside or varying the preliminary decree can and should give directions for setting aside or varying the final decree if the existence of the final decree is brought to its notice as in all cases it should be.

4. We entirely agree with these observations and with the view which is taken by the Calcutta High Court. This view has also been accepted by all other High Courts in India. We must therefore overrule the preliminary objection. On the merits the parties have left the matter to us and we make is the following order. The decrees of the lower Court will be set aside. There will be the usual preliminary mortgage decree between the parties in favour of the plaintiff for Rs. 5390 with further interest on Rs. 3500 at nine per cent, from the date of suit till judgment, costs and interest on judgment at six per cent, till payment. Period of redemption six months from to day. Liberty to the plaintiff to apply for a personal decree against defendant 1. No order as to costs of the appeal.

D.S/R.K

5. Decrees set aside.