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Kamarsu Ramachendrarao Vs. Simhadri Rattayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1934Mad198; 148Ind.Cas.134
AppellantKamarsu Ramachendrarao
RespondentSimhadri Rattayya and ors.
Cases ReferredRanga Raju v. Ethirajam
Excerpt:
civil procedure code (act of 1908), order xxxiv rule 5 - application for final decree--order allowing application, whether appeal able--conversion of appeal against order into one against final decree--permissibility of. - order1. this is an appeal arising out of an application for the passing of a final decree in a mortgage suit under rule 5 of order xxxiv, civil procedure code. the lower court allowed this application and passed a final decree accordingly. the order stands in the place of the judgment and the decree drawn up in pursuance of it is the final decree contemplated in the aforesaid rule that being so, the present appeal must be deemed to be one against the final decree so passed. in such an appeal, we think, it is open to the appellant to raise the contention that the final decree should not have been passed. but mr. appa rao argues that he is entitled to file an appeal against an order directing the drawing up of a final decree, as if such an order has been passed in this case. even so, he.....
Judgment:
ORDER

1. This is an appeal arising out of an application for the passing of a final decree in a mortgage suit under Rule 5 of order XXXIV, Civil Procedure Code. The lower Court allowed this application and passed a final decree accordingly. The order stands in the place of the judgment and the decree drawn up in pursuance of it is the final decree contemplated in the aforesaid rule That being so, the present appeal must be deemed to be one against the final decree so passed. In such an appeal, we think, it is open to the appellant to raise the contention that the final decree should not have been passed. But Mr. Appa Rao argues that he is entitled to file an appeal against an order directing the drawing up of a final decree, as if such an order has been passed in this case. Even so, he must be able to show that such an order is appealable. This is not an order against which an appeal is provided by order XXXIV of the Code of Civil Procedure. Nor does such an order amount to a decree, within the meaning of the definition given in the Code. It would be anomalous to treat such an order as a decree, in which case two regular appeals would arise out of the. application under Order XXXIV, Rule 5, one against the order allowing the petition and the other against the final decree passed on that application itself. The decision of Curgenven, J; in Ranga Raju v. Ethirajam mal 124 Ind. Cas. 303 : 30 L.W. 846 ; 57 M.L.J. 718 ; A.I.R. 1930 Mad. 20 ; 53 M 155 ; Ind. Rul. (1930) Mad. 687 : ( 1930) M.W.N. 402, has been relied on. But we find, the question as to whether that order is a decree, and if not, under what provision of law an appeal would lie against such an order, was not discussed in that judgment. Even if that decision has impliedly decided, that such an order is appealable though not as a final decree, with due respect, Are have differ from that view. The decisions wherein the dismissal of such an application was construed to be a decree dismissing the suit are not in point.

2. We hold that this Civil Miscellaneous Appeal is not maintainable. We would, however, allow the appellant to convert this into a regular appeal against the final decree on payment of the requisite court-fee for which we grant three months time from this date. In default of such payment, this Civil Miscellaneous Appeal will stand dismissed with costs.


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