1. In O. S. No. 357 of 1944 on the file of the District Munsif of Vellore a preliminary mortgage decree was passed on 8-11-1944. The suit was by first mortgagees making the mortgagor, defendant 1, and the puisne mortgagees, defendants 2 to 5, parties to the action. The preliminary decree provided 'inter alia' that if the defendants 2 to 5 paid into Court the amount adjudged due to the plaintiffs the first mortgagees and defendant 1 mortgagor made default in making the said payment, defendants 2 to 5 shall be at liberty to apply to the Court to keep the plaintiffs' mortgage alivefor their benefit and to apply for a final decree in the same manner as the plaintiffs might have done under Clause 4 thereof. Subsequently, a fresh preliminary decree was passed on 19-3-1945 which also provided for an application by defendants 2 to 5 for the passing of a final decree after paying into Court the amount due to the plaintiffs. On 27-4-1945, defendants 2 to 5 made an application I. A. No. 537 of 1945 for passing of a final decree; but they did so without paying into Court the amount due to the plaintiffs.
This application was, however, not pressed and was dismissed on 14-9-1945. They filed another application, I. A. No. 489 of 1946, again praying for the passing of a final decree, but again without paying the amount due to the plaintiffs. This petition was dismissed on 26-6-1946 on the ground that they were not entitled to a final decree unless and until they paid the amount due to the plaintiffs. The Court also observed that they might renew the application if they liked after paying the said amount. Subsequently defendants 2 to 5 paid into Court the amount due to the plaintiffs and applied by I. A. No. 1613 of 1946 for the passing of a final decree.
Defendant-mortgagor 1 opposed the application on the ground that in view of the dismissal of the two prior applications, namely, I. A. No. 537 of 1945 and I. A. No. 489 of 1946, the present application was not maintainable. Both the Courts below upheld this objection and held that the present application was incompetent on account of the dismissal of the prior applications. They came to this conclusion on the authority of two decisions of this Court, viz., -- 'Subbalakshmi Ammal v. Ramlinga Chetty', A. I. R. 1919 Mad 709 (A) and-- 'Mummedi Venkatiah v. Boganatham Venkata-subbiah', AIR 1922 Mad 65 (B) wherein it was held that when an application for final decree is dismissed even erroneously the party's remedy is only to appeal against that order and if he did not do so, a second application for final decree was barred.
2. In my opinion the Courts below completely overlooked the essential difference between the facts in those two cases and in the present case. In neither of those two cases does it appear that the persons applying for final decree were not entitled to apply on the date of his application. They were cases where it was urged that the prior application had been wrongly dismissed. The learned Judges point out and if I may say so with great respect I entirely agree with those decisions which are binding on me that if the party considered the orderdismissing his application to be erroneous his remedy was to appeal against the order, and if he does not do so, a second application would be barr-ed. In the present case on the dates on which defendants 2 to 5 made the two prior applications they were not entitled to ask for the passing of a final decree because they had not paid the amount due to the plaintiffs. They became entitled to apply for the passing of a final decree only after making the payment, and after they had done so, the only application they made was the present application. The principle of the above decisions would not apply to the facts of this case.
3. The second appeal must, therefore, be allowed and the application made by the appellants should be restored to file and a final decree passed by the trial Court. The application is accordingly remitted to the Court of the District Munsif of Vellore. The appellants will have their costs of the second appeal. The Court-fee paid on the memorandum of appeal will be refunded.