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Chandulal Maganlal Vs. Motilal Harilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 246 of 1924
Judge
Reported inAIR1926Bom43; (1925)27BOMLR1492; 92Ind.Cas.545
AppellantChandulal Maganlal
RespondentMotilal Harilal
Excerpt:
.....order not obtained--trial court passing absolute decree--appeal should be filed against final decree--passing of final decree to be brought to court's notice at the hearing--practice and procedure.;where an appeal is filed against a preliminary decree, but no stay of proceedings is asked for, and in the meantime, the trial court passes a decree absolute, the appellant should file an appeal against the decree absolute also, or in any event to inform the court, when an appeal against the preliminary decree comes on for hearing, that a decree absolute has been made. - - the first glass subordinate judge held that this plea was bad, and directed that after taking an account of what was due on the mortgage the defendant should pay rs......in the meantime, the defendant not having paid the decretal amount, the plaintiff applied for a decree absolute, and accordingly a decree was passed for the sale of the mortgaged property. in the appeal against the preliminary decree which came before this court, we were not told that the decree had already been made absolute, and that an order had been made for the sale of the property. consequently in dismissing the appeal we directed that the time for payment should be extended by six months from the date of our judgment.3. the respondent's pleader now asks us to delete that order. the actual legal position, when an appeal is filed against a preliminary decree, but no stay of proceedings is asked for, and a final decree is passed in the lower court without any appeal being filed.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case the plaintiff sued to recover Rs. 6721 and costs and interest on the footing of a registered mortgage-deed dated January 23, 1923, for Rs. 6500. The defendant admitting the mortgage pleaded that he had not received a certain sum of Rs, 2600 as a part of the consideration. The First Glass Subordinate Judge held that this plea was bad, and directed that after taking an account of what was due on the mortgage the defendant should pay Rs. 6721 and costs of the suit with interest at nine per cent from the date of suit till repayment within six months from the date of the decree. In default plaintiff to recover this sum by the sale of the mortgaged property. That decree was passed on April 10, 1924.

2. An appeal was filed to this Court from that decree and was heard on August 21, 1925, In the meantime, the defendant not having paid the decretal amount, the plaintiff applied for a decree absolute, and accordingly a decree was passed for the sale of the mortgaged property. In the appeal against the preliminary decree which came before this Court, we were not told that the decree had already been made absolute, and that an order had been made for the sale of the property. Consequently in dismissing the appeal we directed that the time for payment should be extended by six months from the date of our judgment.

3. The respondent's pleader now asks us to delete that order. The actual legal position, when an appeal is filed against a preliminary decree, but no stay of proceedings is asked for, and a final decree is passed in the lower Court without any appeal being filed therefrom, is somewhat obscure. It seems to me that the proper course for the appellant in such a case is to put an appeal on the file against the decree absolute, or in any event to inform the Court, when the appeal against the preliminary decree comes on for hearing, that a decree absolute has been made. It may not be that the Appeal Court is debarred from hearing the appeal from the preliminary decree merely on account of the Court below having passed a final decree, But to avoid the difficulties which may arise when no application has been made for stay of proceedings, it would certainly be desirable that, in any case where a preliminary decree is passed, and a party appeals against that decree, when the Court below passes a final decree, he should file an appeal against that decree.

4. In this case if the property had already been sold before the decision of the Appeal Court, it is difficult to see how this Court could have set aside the sale. But we think the fairest order to be made now is that the respondent-mortgagee should add his costs of the postponed sale and of the application if any to the mortgage, and that the appellant mortgager should have one month from this day to pay what is due. In default the respondent can proceed to get the property sold. The respondent must pay the costs of this application if any.

5. We make it clear that the mortgagee is entitled to his decretal amount and interest and all his costs, charges and expenses. Those must be paid if the mortgagor desires to avoid the sale of the property,

Coyajee, J.

6. I agree.


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