Dhup Panday vs Narbadeshwar Prasad Narain Singh

Dhavle, J.—This is an appeal from an order of remand. The suit was for redemption of a zerpeshgi mortgage. The plaintiff''s case was that the mortgagee had been more than repaid the entire mortgage debt by reason of the fact that notwithstanding the stipulation in the mortgage bond requiring the mortgagee to pay, the plaintiff himself had to pay the Government revenue and cesses on the mortgaged property on account of the failure of the mortgagee to do so. It appears that the shares mortgaged formed parts of two separate accounts both numbered 4 in Tauzi Nos. 73 and 249, and the plaintiff produced certain challans showing payment of the Government revenue and cesses for these separate accounts. The defendant on his part produced certain challans showing payment by him, but some of the challans mentioned, three, as the number of the separate accounts.

The mortgage bond itself did not give the number of the separate accounts.

The trial Court accepted the challans produced by the defendant as proof of the fact that he had all along paid the Government revenue and cesses as stipulated in the mortgage bond and accordingly passed a preliminary decree declaring that the mortgage money, Rs. 787-8-0 was due from the plaintiff to the defendant and that if the plaintiff paid it into Court within two months the defendant shall deliver up all documents in his possession, etc. On appeal the Additional Subordinate Judge held that there was no reason why the payment on account of the separate accounts No. 3 should be credited in favour of the mortgagee; and he considered that the mortgagee should be allowed an opportunity of filing copies of some challans relating to separate accounts No. 4 before the final account was made, as it was represented that the defendant had lost some of the challans.

He therefore set aside the preliminary decree passed by the trial Court and remanded the case to the Munsif:

for giving an opportunity to the respondent for filing copies of the alleged lost challans, if any, and then to make an account on the principle pointed out above and pass a decree accordingly.

The mortgagee defendant appeals. It has been urged on behalf of the plaintiff-respondent that the appeal is incompetent. There is no dispute that the order of remand passed by the lower appellate Court does not come within Order 41, Rule 23 which does not apply to cases where the trial Court has disposed of the whole suit. There is also no dispute that the only order of remand from which an appeal is provided by the Code is an order passed under Order 41, Rule 23: see Order 43, Rule 1(u). It has however been urged an behalf of the appellant that the order of the lower Court amounts to a decree, inasmuch as it sets aside the preliminary decree passed by the trial Court.

There are some reported decisions where such a contention has been accepted. But it is settled in this Court that an order of remand cannot be treated as a decree merely because it sets aside the decree of the trial Court: see Parmanand Kumar v. Bhou Lohar AIR 1926 Pat 457 and Chaudhary Chandrika Prasad Singh and Others Vs. Mithu Rai and Others, .

The learned advocate for the appellant has also urged that the order of the lower appellate Court is a decree within the definition and explanation given in Section 2(2) Civil P.C. A decree is defined as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and is preliminary when further proceedings have to be taken before the suit can be completely disposed of. The contention of the appellant is that the lower Court has conclusively determined that the appellant is not to have any credit for the sums paid in by him in respect of the separate accounts No. 3.

The definition of a decree is undoubtedly couched in very wide terms, but it is now settled law that not every finding will amount to a decree even though it may conclusively determine the rights of the parties with regard to some of the matters in controversy in the suit.

As has been pointed out in such decisions as Chanmalswami Rudraswami Vs. Gangadharappa Baslingappa, and Dattatraya Purshottam Parnekar Vs. Radhabai Balkrishna Trimbak, the definition in Section 2, Civil P.C., must be taken along with the provisions of the Code regarding the stage at which a decree may be prepared. To hold otherwise would mean that an appeal may be heard piecemeal, and that is undesirable as it seems to be opposed to the scheme of the Code as a whole: see Moheshur Sing v. Bengal Government (1859) 7 MIA 283 and Jawahir Lal Vs. Fateh Mahton and Others, .

In the case of redemption suits there is specific provision in Order 34, Rule 7 requiring the Court to pass a preliminary decree on defined lines; the decree is either to order that an account be taken or to declare the amount due, and to direct what is to happen if the plaintiff does or does not pay. A comparison of this rule with Order 20, Rule 17 makes it clear that directions by the Court with regard to the mode in which the account is to be taken or vouched will not, at least in redemption suits, amount to preliminary decrees.

In (Raja) Peary Mohan Mookerjee Vs. Manohar Mookerjee, directions regarding the period of account and the method of accounting were taken to amount to a preliminary decree, but the suit was not based on a mortgage.

In our own Court, Ross, J., held in Balaram Manjhi v. Jagannath Manjhi AIR 1925 Pat 760 that an order of remand directing a partition according to certain principles laid down by the Court of first appeal was not appealable. The lower appellate Court in the present instance did not, in my opinion, even purport to give formal expression to an adjudication which conclusively determined the substantive remedial rights of the parties: see The Municipal Committee of Nasik Vs. The Collector of Nasik, already referred to.

On the contrary, it set aside the decree of the Munsif and remanded the case to him for taking an account on the principle laid down and to pass a decree accordingly. This last decree when passed by the trial Court will be the preliminary decree in the suit as provided in Order 34, Rule 7.

The contention of the respondent must therefore be accepted. I hold that no appeal lies. There is no question of treating the memorandum of appeal as an application in revision, because an application in revision, was made by defendant and dismissed by Scroope, J.: see Dhup Panday v. Narbadeshwar Prasad Narayan Singh (Civil Revision No. 362 of 1931 disposed of on 10th July 1931) to which the learned advocate for the appellant has quite properly drawn my attention.

It is also clear that there is no question of jurisdiction involved in the case at this stage: see Parmanand Kumar v. Bhou Lohar AIR 1926 Pat 457 already referred to. The appeal is accordingly dismissed as incompetent. The respondent is entitled to his costs.