Kuppuswami Ayyar, J.
1. The appeal arises out of a suit for redemption of a kanom filed by the appellant in the District Munsif's Court of Walluvanad. The defendant pleaded that he was entitled to get a renewal of the kanom and also raised other contentions. He further filed a petition under the Malabar Tenancy Act praying for a renewal being granted. The learned District Munsif ordered the renewal by order on I.A. No. 792 of 1941. But as the renewal fee and the arrears of rent and future rent which were directed to fee deposited were not deposited he dismissed that interlocutory application and decreed the suit on 25th February 1942. On appeal it was contended that the renewal fee fixed and directed to be paid was in excess and that the District Munsif had gone wrong in fixing the period for which renewal was to ensure. It was contended for the plaintiff in appeal that the order on I.A. No. 792 of 1941, the petition filed by the defendant for the grant of a renewal had become final as no appeal was preferred against the order thereon dismissing it for non-payment of renewal fee and rent directed to be deposited and it was not open to defendant 1 to agitate that question again and that as the only question raised in the appeal related to the renewal fee and the period for which renewal was to be granted, the appeal was not maintainable. The learned Subordinate Judge, following the principles of the decision of this Court in Neelakandhan Nambudripad v. Krishna Ayyar A.I.R. 1943 Mad. 544 and the provisions of Section 105(1), Civil P.C., held that the matter could be gone into in appeal. He therefore allowed the appeal, set aside the order and remanded the suit and the petition, I.A. No. 792 of 1941, for fresh disposal. It is as against that order that this appeal has been filed.
2. The only point for consideration whether it is open to the respondents to dispute the correctness of the order in I.A. No. 792 of 1941 when they had not filed any appeal, against the order dismissing the petition, and if so, what is the renewal fee payable and from what date is the renewal to be granted. Under Section 17 (a), Malabar Tenancy Act, a kanamdar on the expiry of the term of the kanam under which he holds is entitled to claim and his immediate landlord shall be bound to grant a renewal, enuring for a period of twelve years from the same on payment of a renewal fee of 2i times the balance of the annual fair rent of the lands covered by the kanam after deducting (1) the annual revenue payable on the kanam property to the Government, if payable by the kanamdar under the kanam deed, and (2) the annual interest on the kanartham and (3) the annual michavaram payable under the previous kanam. Under Section 22 (1) a kanamdar is entitled to apply to the Court in the form prescribed for the execution of a renewal deed. Under Section 23 (b) if the landlord sues to evict the tenant on the ground that the period of the kanam had expired and no renewal had been obtained, the tenant shall be entitled to make an application or a fresh application Under Sub-section (1) of Section 22 and the suit shall abide and follow the result of such application. Under Section 24, the Court shall determine the amount to be paid as renewal fee and make an order for the deposit within a time to be fixed by the Court of the amount payable with interest. Under Section 25, if the deposit ordered Under Clause (ii) of Section 24 is not made within the time fixed, the Court shall dismiss the application and such dismissal shall bar any subsequent application tinder Section 22 by the tenant or those claiming under him. Section 50 provides for an appeal against an order made Under Section 25. In this case, there was an order Under Section 25 dismissing the petition as the amount ordered Under Section 24 to be deposited was not deposited. No appeal was filed. It is therefore urged for the appellant that the order dismissing the petition for the grant of renewal not having been appealed against and having become final, it would not be open to the Court sitting in appeal against the decree in the suit for redemption to canvass the correctness of the order on the petition for renewal.
3. The decision in Neelakandhan Nambudripad v. Krishna Ayyar A.I.R. 1943 Mad. 544 was no doubt a decision in a converse case. There, in an appeal against the order on the petition for renewal it was pleaded that inasmuch as a decree had been passed in the redemption suit filed by the landlord and the tenant had not appealed against it, the question agitated in the appeal against the order on the petition for renewal had also become final and the appeal was hence not maintainable. It was held that that was not so. It is urged for the appellant that that case was similar to an appeal against a preliminary decree, the maintainability of which could not be' questioned merely because subsequent to the passing of the preliminary decree and before the disposal of the appeal therefrom a final decree had been passed and no appeal had been filed against that final decree and that in this case no appeal has been filed against the preliminary decree and the appeal was only against the final decree in which the decision in the preliminary decree is sought to be questioned. It is however urged for the respondents that, as pointed out by the learned Subordinate Judge, this is a case governed by Section 105, Civil P.C. As per Section 23 (b), Malabar Tenancy Act, if the landlord sues to evict the tenant on the ground that the period of the kanam had expired and no renewal had been obtained, the tenant shall be entitled to make an application or a fresh application Under Sub-section (1) of Section 22 and the suit shall abide and follow the result of such application. It is therefore contended that the petition being an interlocutory application filed by way of defence in the suit itself, the defendant has got two remedies, (1) to agitate the matter in the appeal provided Under Section 50 and, (2) also agitate it in his appeal against the decree in the suit in which on an interlocutory application the question as to the grant of a renewal has been decided. The mere fact that the order on the interlocutory application had become final by reason of the fact that the matter was not taken to the superior Courts and was decided finally would not stand in the way of the defendant exercising his right to have the matter agitated in an appeal against the decree in the suit itself. That there is some force in the contention is apparent from the decision of this Court in Pitchu Ayyangar v. Ramanuja Jeer Swamigal A.I.R. 1940 Mad. 756. It was held in that case by a Bench of this Court that an order of the High Court in revision Under Section 115 on a preliminary issue relating to the maintainability of the suit holding that the suit did not lie could be questioned in an appeal to this Court from the decree dismissing the suit based on such order. That the result of the suit for redemption of the kanom is dependent on the decision of the application for renewal filed Under Section 23 (b), Malabar Tenancy Act, is not disputed and is also clear from the language of Section 23 (b) namely, 'The suit shall abide and follow the result of such application.' Further, from the fact that the application is to be filed as a reply to the suit after the suit is filed, it is clear that it is to be treated as an interlocutory matter. As a matter of fact, they were treated as interlocutory applications and numbered as such.
4. Under Section 105, Civil P.C., where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. The decision of the question as to whether the tenant was not entitled to be granted renewal unless he deposited a particular amount as renewal fees etc., is a decision which affects the decision in the suit for redemption of the kanom in which the petition for renewal was filed. Consequently, in the appeal against the decree in the suit for redemption of the kanom, the error or defect or irregularity in the decision with regard to the renewal could be set forth as a ground of objection. It is true that in the first portion of Section 105(1), Civil P.C., it is stated that save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of original or appellate jurisdi6tion. But then there is nothing in that section to indicate that in cases where an appeal is provided a defect in an order affecting the decision of the case cannot be set forth as a ground of objection in the memorandum of appeal against the decree in the suit merely because no appeal has been filed against that order. In the light of Section 105(1) and in the light of the ruling in Pitchu Ayyangar v. Ramanuja Jeer Swamigal A.I.R. 1940 Mad. 756. I think that the learned Subordinate Judge was right in finding that the question as to the validity of the order on the renewal application as regards the amount that is to be paid as renewal fees and the period for which the lease is to be granted is one that could be canvassed and considered in the appeal against the decree in the redemption suit. With regard to the quantum of renewal fees and the period for which the lease is to be renewed, the learned Subordinate Judge has followed the latest decision of this Court in Neelakandhan Nambudripad v. Krishna Ayyar A.I.R. 1943 Mad. 544. I therefore find that the order on that portion of the case also should stand. In the result, the appeal fails and is dismissed with costs. Leave refused.