Jakkampatl Rangiah vs Kunala Peddireddi

Subba Rao, C.J.—This is a revision against the order of the learned District Judge, Cuddapah, allowing the appeal filed against the order of the District Munsif, Nandalur, in I. A. No. 752 of 1951.

The facts that gave rise to the revision may be briefly stated. The Petitioner filed a suit on a mortgage and obtained a preliminary decree for foreclosure on 31st January, 1951. Under the decree, the amount payable was ascertained to be a sum of Rs. 1,321-3-0 and the Respondent was directed to pay that amount on or before 31st July, 1951. The Respondent did not pay the money within the prescribed time but applied for extension of time and time was extended till 29th November, 1951. Even within the extended time, he did not pay the amount but applied for further extension. The learned District Munsif refused to extend the time and made a final decree for foreclosure.

The Respondent preferred an appeal against the order of the learned District Munsif refusing to give further time but he did not prefer any appeal against the final decree. Before the learned Judge, a preliminary objection was raised to the effect that no appeal lay against an order refusing to extend time as the said order had become merged in the final decree. The learned District Judge rejected the preliminary objection and allowed the appeal directing the Munsif to give further time. This revision is filed against that order.

Learned Counsel for the Petitioner contends that no appeal lies against an order refusing to extend time under Order 34, Rule 2, Code of Civil Procedure, after a final decree is made in a suit.

It will be convenient at this stage to read the relevant provisions on which reliance is placed by one or other of the parties before me.

Order 34, Rule 2(1). In a suit for foreclosure, if the Plaintiff succeeds, the Court shall pass a preliminary decree:

(2) The Court may, on good cause shown and upon terms to be fixed by the Court from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-r. 1 or the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Where payment in accordance with Sub-rule (1) has been made, the Court shall, on application made by the Plaintiff in this behalf, pass a final decree declaring that the Defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also if necessary, ordering the Defendant to put the Plaintiff in possession of the property.

Order 43, Rule 1. An appeal shall lie from the following orders under the provisions of Section 104, namely:

(4) an order under Rule 2, Rule 4 or Rule 7 of Order 34, refusing to extend the time for the payment of mortgaged money.

It is clear from the aforesaid provisions that the Court has power to extend or not to extend the time fixed for the payment of the amount declared due under a decree from time to time before final decree is made and under Order 43, Rule 1 (o), a statutory right of appeal is conferred against an order under that clause. There is no provision in the Act to the effect that this statutory right of appeal ceases to exist on the passing of a final decree. Prima facie, therefore, a mortgagor aggrieved by an order made under Order 34, Rule 2 (2), has a right of appeal against that order. This aspect of the case has been considered at some length by Viswanatha Sastri J., in Kota Kanakayya and Another Vs. Kamepalli Lakshmayya and Others, (A). There the question was whether a right of appeal against an order of remand would be defeated by the passing of a final decree after remand. One of the arguments advanced before the learned Judge was that, after the passing of the final decree, the order of remand merged in the final decree and therefore, an aggrieved party could only file an appeal against the final decree. Dealing with that argument, the learned Judge observed, at page 383 (of Mad LJ): (at page 220 of A1.H):

The litigant has a right of appeal against an order of remand; he has a right also to contest the proceedings taken in the trial Court pursuant to the order of remand; these are independent legal rights and the exercise of one such right is no bar to the exercise of the other. The aggrieved party is not even faced with alternative rights; it is the same right that he wishes to agitate both in the appeal against the order of remand and at the further stages of the trial after the remand. He has not lost his right to have an appeal against an order of remand merely because he has contested the litigation in the lower Court after the remand.

Just as in that case in the present case, the Respondent had a statutory right of appeal against an order made under Order 34, Rule 2(2) and the said right could not have been lost by the subsequent decree made in the suit. This judgment was followed by a Division Bench of the Madras High Court in Venkatarama Ayyar v. Univamalai Ammal, 1951 1 LJ 474 : AIR 1951 Ead 883 (1) )'' (B). There, the learned Judges approved the reasoning and the conclusion arrived at by Viswanatha Sastri J., and held that notwithstanding the fact that after an order of remand the suit was disposed of, the party aggrieved by the order of remand would have a right of appeal against the order of remand.

Another Division Bench of the Madras High Court consisting of Satyanarayana Rao and Krishnaswami Naidu JJ., in Varadarajan v. Venkatapathi Reddi, 1953 1 MLJ 148 : AIR 1953 Mad 587) (C), accepted the same principle and applied it to the facts before them, though in terms they did not refer either to the judgment of Viswanatha Sastri J., or to that of Satyanarayana Rao and Raghava Rao JJ. In that case, during the pendency of an appeal against an order refusing to set aside the sale under Order 21, Rule 89, the sale was confirmed under Order 21, Rule 92, Code of Civil Procedure.

It was argued there as it is argued before me that as no appeal was filed against the order under Order 21, Rule 92, the appeal against the earlier order was not competent. But the learned Judges rejected that contention and held that, as a statutory appeal was provided against an order under Order 21, Rule 89, the appeal was maintainable, The learned Counsel, contended that there is an. essential distinction between a remand order and an order made under Order 34, Rule 2, Code of Civil Procedure, It is argued that in the case of a remand order, Section 105(2), Code of Civil Procedure, expressly states that:

Notwithstanding anything contained in Sub-Section 1, where any party aggrieved by an order remand made after the commencement of this Code from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness,

and, therefore, in the absence of any such provision, it must be held that," if a final decree was made, no appeal lies against an interlocutory order. I cannot read into Section 105 by implication words which are not there or construe the section in such a way as to deprive a person of a statutory right of appeal conferred expressly by the other provisions of the Act. It may also be pointed out that Viswanatha Sastri J., whose judgment was approved in toto by Satyanarayana Rao and Raghava Rao JJ., pointed out the provisions of Section 105 (2), in the course of the judgment, did not base his judgment on that provision but mainly on the ground that a statutory right of appeal could not be defeated by the passing of a final decree.

It is true that the Nagpur High Court in AIR 1930 240 (Nagpur) (D), adopted a different line of reasoning but, in view of the aforesaid two judgments of the Madras High Court, I regret my inability to follow the said judgment.

The next question is what is the effect of the appellate order on the final decree that was made by the first Court. It is a well-settled principle of law that certain orders and decrees which are subordinate and dependent upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependent are not reversed or superseded. See Shama Purshad Ray Chowdry v. Hurro Purshad Roy Chowdry, 10 Mco Ind App 203 (PC) (E) and 1953 1 Mad LJ 148 : AIR 1953 Mad 587) (C). The question, therefore, is whether the final decree made is dependent for its validity on the order refusing to extend the time. If the learned District Munsif did not refuse to extend the time he could not have made the final decree. If the order refusing to extend the time was set aside in appeal, the final decree could1 not obviously stand, for it was made on the basis of the order which was subsequently set aside. In this view, when the District Court set aside the order refusing to extend the time under Order 34, Rule 2, Code of Civil Procedure, the final decree, which has been made on the basis of the wrong order, being a dependent one, fell with it.

Now, coming to the merits, the learned District Judge, having regard to the facts in the exercise of discretion, held that a case had been made out for extending the time and that the learned District Munsif was wrong in refusing to do so. I do not think I am justified in revision in interfering with his discretion.

In the result, the revision fails and is dismissed with costs.