Kamarasu Ramachandra Rao vs Simhadri Rathayya and Others

This is an appeal arising out of an application for the passing of a final decree in a mortgage suit under Rule 5 of Order 34, Civil Procedure

Code. The Lower Court allowed this application, and passed final decree accordingly. The order stands in the place of the judgment and the

decree drawn up in pursuance of it is the final decree contemplated in the aforesaid rule. That being so, the present appeal must be deemed to be

one against the final decree so passed. In such an appeal, we think, it is open to the appellant to raise the contention that the final decree should not

have been passed. But Mr. Appa Rao argues, that he is entitled to file an appeal against an order directing the drawing up of a final decree, as if

such an order has been passed in this case. Even so, he must be able to show such an order is appealable. This is not an order against which an

appeal is provided by Order 43 of the Code of Civil Procedure. Nor does such an order amount to a decree, within the meaning of the definition

given in the Code. It would be anomalous to treat such an order as a decree in which case two regular appeals would arise out of an application

under Order 34, Rule 5, one against the order allowing the petition and the other against the final decree passed on that application itself. The

decision of Curgenven, J. in Ranga Raju and Another Vs. Ethirajammal, has been relied on. But we find, the question as to whether that order is a

decree, and if not, under what provision of law an appeal would lie against such an order, was not discussed in that judgment. Even if that decision

had impliedly decided, that such an order is appealable though not as a final decree, with due respect, we have to differ from that view. The

decisions wherein the dismissal of such an application was construed to be a decree dismissing the suit are not in point.

We hold that this Civil Miscellaneous Appeal is not maintainable. We would, however, allow the appellant to convert this into a regular appeal

against the final decree on payment of the requisite Court-fee for which we grant three months'' time from this date. In default of such payment, this

Civil Miscellaneous Appeal will stand dismissed with costs.