Alfred Henry Lionel Leach, C.J.
1. We agree with Somayya, J., from whose decisions appeal has been preferred that the case is governed by the decision of this Court in Kotayya v. Venkata Punnayya : AIR1940Mad910 . That case was decided by a Division Bench and its decision is binding on us. The learned advocate for the appellant has suggested that the decision should be reconsidered and has asked us to refer the question to a Full Bench We see no reason why we should adopt this course.
2. It has been suggested that there is a difference here because in the present case there has not been a final decree only a preliminary decree. The learned Judge has rightly pointed out that it is the preliminary decree in a mortgage suit which fixes the rights and liabilities of the parties. When a preliminary decree has been passed time is given to the mortgagor to pay off the decretal amount and redeem the mortgage. The final decree does not change the position except that it gives the mortgagee the right to sell the property for the amount declared to be due in the preliminary decree.
3. For these reasons we concur in the decision of the learned Judge, and the appeal will be dismissed with costs.