1. This revisional application raises a short question as to the competence of the appeal preferred by the petitioner before the learned District Judge. It appears that in adjustment proceedings a transaction which took place between the parties on 7-5-1931 was alleged to be a mortgage. The petitioner before me is one of the creditors. On the date of hearing, the creditor was absent and on the evidence led the learned Judge held that it was a mortgage.
Thereupon an award followed. Against this award, the petitioner preferred an' appeal in the District Court. The learned District Judge has held that, after it was found by the trial Court that the transaction in question was a mortgage, it was necessary that the petitioner should nave preferred an appeal against that order, and since the petitioner had failed to prefer an appeal it was not open to him to prefer an appeal against the final award. It is on this view that the appeal was rejected as being incompetent.
2. In my opinion, the learned District Judge was in error in holding that the appeal was incompetent. It is perfectly true that the finding that a particular transaction is a mortgage re-corded under Section 24 of the B.A.D.R.. Act is appealable as an order. But there is nothing in the Act which imposes a disability on a party aggrieved by the said finding merely because the party did not prefer an appeal against the order Itself.
Under the Code of Civil Procedure, if a person aggrieved by a preliminary decree does not prefer an appeal against the Said decree, he is precluded by a specific provision from challenging the said final decree in an appeal against the tin-al decree. In the absence of such a clear provision in the Act, there would be no justification for holding that just because a particular order is appealable it must follow that the failure of the party aggrieved by the said order to prefer an appeal, as he should have done, disentitles him from disputing the validity of the order in an appeal against the final award.
That is the view taken by Rajadhyaksha and Dixit JJ. In -- 'Chatrappa v. Dastgirsaheb' : AIR1952Bom80 . That being so, I must hold that the District Judge was in error in rejecting the appeal as being incompetent.
3. Mr. Abhyankar for the Opponents contends that there is another fact which must be taken into account in dealing with the competence of the appeal. After the issue as to the nature of the transaction was decided 'ex parte' an award followed, and under Section 36 of the B.A.D.R. Act an application was made by the creditor to set aside the ex parte award. The learned District Judge was in error when he thought that no such application had been made by the creditor.
An application was in fact made under Section 36 and has been rejected. Against the dismissal of this application no appeal has been preferred. Mr. Abhyankar contends that it would not be open to the creditor now to raise any point that an ex parte award should not have been made in this matter because all questions which the creditor sought to raise by his application under Section 36 would now be barred because the rejection of the application has become final inasmuch as no ap-peai has been preferred against the said order of rejection. That no doubt, is the correct position.
But because an order rejecting the creditor's application for restoration of adjustment proceedings under Section 36 has been rejected, it cannot follow that the creditor would not be entitled to challenge the finding as to the nature of the trans-action on the material as it stands on the record, and that is all that the creditor seeks to do by his appeal which has been rejected by the learned District Judge as incompetent. Therefore, in my opinion, the order under revision must be set aside.
4. The revisional application accordinglysucceeds, the rule is made absolute and the papers are sent back to the learned District Judgewith a direction that he should deal with the appeal according to law. Since the petitioner succeeds, he is entitled to the costs of the revisionalapplication. Costs in the appellate Court willbe costs in the appeal. Costs in favour of thepetitioner alone.
5. Revision allowed.