MURLIDHAR NARAYAN GUJARATI Vs. VISHNUDAS BALMUKANDAS

JUDGEMENT

(1.) Several questions of law have been argued in this appeal, but it is necessary only to decide one of them as it is sufficient to dispose of the appeal.

(2.) The facts connected with that point are briefly these: The suit, out of which this second appeal has arisen, was filed on the 4th of June 1907 on a mortgage, dated the 29th of April 1897. The mortgagee sought to enforce his mortgage claim by sale of the mortgaged property. A preliminary decree was passed on the 30th of June 1910 as contemplated by Order XXXIV, Rule 4, of the Civil Procedure Code, ordering, among other things, defendants Nos. 1 and 2 to pay the mortgage amount within six mouths to the plaintiff and in default directing a sale of the mortgaged property. The defendants Nos. 1. and 2 failed to pay the amount, and a final decree for sale was made on the 15th of March 1912, apparently as contemplated by Rule 5 of the same Order. The present appellant, who is defendant No. 1, had not appealed against the decree of the 30th of June 1910; but he appealed to the District Court from the decree of the 15th of March within the time allowed by law. In that appeal he substantially raised points against the decree of the 30th of June 1910. It was objected in the lower Appellate Court that in virtue of the provisions of Section 97 of the Civil Procedure Code the appellant could not raise any point against the preliminary decree in his appeal against the final decree of the 15th of March 1912. The lower Appellate Court held that the appellant was precluded from disputing the correctness of the preliminary decree in the appeal preferred from the final decree.

(3.) The learned Counsel for the appellant before us has questioned the correctness of this view and has urged that the present suit having been filed before the new Code came into force, the right of appeal must be held to have accrued to him under the old Code of 1882, that it could not be taken away or modified in any way by the new Code, that under the old Code there was no distinction made between a preliminary and final decree and that it was open to him in appeal from the final decide to argue the whole case according to the repealed Code.