B B Ghose, J - (1.)This appeal arises from an order refusing to set aside an ex-parte decree passed in a suit on a mortgage brought on 20 December 1924. After the suit had been pending for some time, an application was made by the defendants on 4 November 1925 for further time. The application was ostensibly on the ground of illness of witnesses and so forth. That application was rejected. The plaintiff also filed an application which was also rejected. Upon that the defendants pleader alleged that he had no further instructions and retired from the case. The plaintiff proceeded to prove his case ex-parte and obtained a decree. The present application was made on 2 December, 1925 for setting aside the ex-parte decree. The Subordinate Judge has stated his grounds for rejecting the application. From that order, the present appeal has been presented.
(2.)A preliminary objection has been taken that no appeallies. The ground is that the application udder Order 9, Rule 13, Civil P.C., was dismissed on 19 May 1926. The final decree in the mortgage suit was made on 28 June 1926. It is contended on the authority of the case Jogendra Narayan Das V/s. Satyendra Chandra Ghose that the appeal is incompetent because of the passing of the final decree in the mortgage suit. With great respect I am unable to agree with the reasons of the judgment. An appeal is allowed against an order under Order 9, Rule 13 Civil P.C., by Order 43. There is no provision in the Code which debars an appeal from such an order unless there is an appeal from the ex-parte decree itself, and surely there is no basis for the argument that an appeal from the order is incompetent if there is no appeal from the final decree. The reported case appears to be based on certain cases in this Court where it has been held that an appeal against the preliminary decree is not incompetent, if before the appeal is filed, the final decree in the case has been made and there is no appeal from the final decree. In my opinion, those decisions based upon the provisions of the Civil Procedure Code of 1882 cannot be sustained upon proper grounds. The Code of 1882 allowe3 a preliminary decree to be questioned in an appeal from the final decree and the basis of the decisions under the Code of 1882 was that after the final decree is passed, the preliminary decree ceases to exist and is absorbed in the final decree. The preliminary decree having no separate existence, an appeal from such a decree was held to be infructuous when the final decree was made. Under the present Code, the two decrees are independent and separate. One cannot now question the validity of the preliminary decree by an appeal from the final decree.
(3.)Under Section 97 if a person aggrieved by a preliminary decree does not appeal from it he is precluded from disputing its correctness by his appeal from the final decree. In my opinion therefore where a preliminary decree has an independent existence and a person aggrieved by it is bound to appeal from it, that right cannot be taken away by a final decree being passed either before or after the person appeals from the preliminary decree. If a proper ease had arisen before us, we would have referred this question to the Pull Bench for the point being settled once for all, as we think that the view taken by the Madras and Allahabad High Courts is the correct view to take under the present Code and that the view taken in a series of cases in our Court can not be sustained upon principle. But this is not such a case in which a reference may be made.